Madhya Pradesh High Court
Golu @ Lokesh vs The State Of Madhya Pradesh on 30 November, 2021
Author: Vivek Rusia
Bench: Satyendra Kumar Singh, Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.: Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Satyendra Kumar Singh , JJ.
Criminal Appeal No.1412/2010
Golu @ Lokesh S/o Rameshchandra,
aged about 22 years, R/o Vyayamshala Appellant (s)
Ki Gali, Gali No.37, Ujjain, Police
Thana, Mahakal, Ujjain, M.P.
Versus
State of M.P. Thourgh Police Station
Chimanganj, District Ujjain, M.P. Respondent (s)
Shri S.K. Vyas learned Senior Advocate alongwith Amit Vyas,
learned counsel for the appellant.
Ms. Mamta Shandilya, learned Government Advocate for the
respondent/State.
JUDGMENT
(Heard and reserved on 22.11. 2021) (Delivered on 30.11.2021) PER VIVEK RUSIA, J: -
This is an appeal preferred by the appellant against the judgment dated 22.11.2010, passed by the learned Sixth Additional Sessions Judge (Fast Track Court) Ujjain in Sessions Case No.633/2008, thereby he has been convicted for an offence punishable under Section 302 of the Indian Penal Code, 1860 ("IPC") and sentencing to suffer imprisonment for life and fine of R.5,00/-.
(2) The case of the prosecution, in brief, is as follows: -
(i) A Dehati Nalishi (Ex.P/15) was registered at the instance of complainant Mahesh S/o Tulsiram a resident of House No.45/07, Nijatpura who claimes himself to be a close friend of Bunty Upadhayay ( now the deceased ), who was engaged in the sale of Compact Disc and cloths. Accordingly to him today i.e. on 15.05.2008 near about 09/09: 15 PM, the appellant:Golu, a 2 resident of Vyayamshala gave phone calls three-four times to Bunty to return Rs.600/- of Compact Disc, hence he asked his location. Bunty called him Machhli Market near Nagar Kot where he was sitting with the complainant. After 15-20 minutes, of the aforesaid call, eight persons came in four motorcycles. Out of them, one has put a country-made pistol upon him and he told to settle the money dispute with Bunty. Then other persons took out the knives and started assaulting Bunty Upadhaya. The complainant fled away from the spot and reached the police station. After some time, Bunty also reached there in injured condition with injuries on his thigh, near penis and his head etc. Accordingly to the complainant, he could recognize the appellant Golu only who used to purchase compact discs from Bunty.
According to him, he has seen all the accused in the sodium lamplight and he would recognize them if brought before him.
(ii) On his complaint, Dehati Nalish (Ex.P/15) was registered at Crime No.0/08 for the offence punishable under Section 147,148,149,324, 506, 307 of I.P.C against the appellant and unknown others. Arun Mishra (PW-17) has started the investigation by drawing a spot map (Ex.P/7). He recorded the statement of Mahesh and Shiv @ Shiva. He collected blood- soaked soil, plain soil vide seizure memo Ex. P/8.
(iii) The injured Bunty was admitted to the Civil Hospital Ujjain,. Dying declaration of Bunty @ Lokesh was recorded vide Ex. P/14. Accused Lokesh @ Golu arrested vide Ex. P/33. His memorandum was recorded vide Ex.P/3 and on which knife was recovered vide seizure memo Ex. P/9. Vide letter dated 07.10.2008, all seized articles were sent FSL, Gwalior vide Ex. P/38. Police completed the investigation and filed the charge- sheet against the appellant, Jeevan S/o Jagdishchandra and Nilesh 3 S/o Rajesh Kumar Sharma under Section 302, 307, 324, 506/34 of I.P.C in the court of Judicial Magistrate First Class.
(3) Trial was committed to the Sessions Court. Vide order dated 08.05.2009, the learned ASJ has discharged Jeevan and Nilesh for want of evidence and framed the charges under Section 302 of I.P.C. for committing the murder of Bunty @ Lokesh and 307 for causing the injuries to Mahesh. The appellant denied both the charges and pleaded for trial.
(4). The prosecution has examined as many as 19 witnesses as PW-1 to PW-19 and exhibited 39 documents as Ex.P/1 to Ex. P/39 to establish the charges against the appellant. In defence, the appellant did not examine any witnesses.
(5) After evaluating the evidence, came on record, the learned Additional Session Judge has acquitted the appellant for the offence punishable under section 307 of I.P.C. but convicted him for the offence punishable under Section 302 of I.P.C and sentenced as stated above. Hence, this appeal before this Court.
(6) Shri Vyas, learned Senior counsel appearing on behalf of the appellant urged that on the same set of evidence, the learned ASJ has discharged the Jeevan and Nilesh but wrongly convicted the appellant. Once the appellant has been acquitted for the offence under Section 307 of I.P.C. relying on the statement of Mahesh (PW-12) injured sole eye witness then appellant ought to have been acquitted under Section 302 of I.P.C. It is further submitted that the judgment of conviction is solely based on the dying declaration which has no corroboration with other ocular evidence. The Bunty @ Lokesh was taken to the District Hospital, Ujjain at about 11:00 am. He was examined by a duty doctor who noted that 'the pulse not palpable', 'blood pressure not recordable, and cold and clammy skin, therefore, the injured was not in a fit 4 condition to give dying declaration. Although Dr. A.K. Paul at the end of the dying declaration has certified that the injured remained conscious and good orientation to record the statement but he remained silent in his deposition before the Court. It is further submitted by learned senior counsel that in the dying declaration the injured took the name of Golu but the prosecution has failed to prove that the appellant is the only person named Golu in that locality, whereas the official name of the appellant is Lokesh S/o Ramchandra.
(7) Shri Vyas, learned Senior counsel further submitted that the prosecution has filed the charge-sheet under Section 302, 307, 324, 506/34 of I.P.C. as 8 miscreants came to spot and assaulted the deceased and the complainant by means of a knife, thereafter charge-sheet was filed against the appellant and two others who have been discharged then the appellant alone could not have been convicted under Section 302 of I.P.C., alone hence, conviction is bad in law and appellant is liable to be acquitted.
(8) Learned Government Advocate has argued in support of the judgment passed by learned Additional Session Judge that the appellant was duly identified by the deceased as well as Mahesh P.W.-12. A knife was recovered on his disclosure, therefore on the basis of evidence that came on record and the dying declaration, the appellant has rightly been convicted for the offence punishable under Section 302 of I.P.C. hence, no interference is called for.
We have heard learned counsel for the appellant and learned counsel for the respondent/State.
(9) The prosecution case was set into motion after the registration of Dehati Nalish at the instance of Mahesh (PW-12). According to him, this appellant wanted to return Rs. 600 to Bunty: the deceased, therefore he enquired about his location by 5 giving 3-4 call on his mobile. He was sitting with Bunty near Patalpura at that time 8 persons came in four motorcycles. After parking the motorcycle, they came towards them, out of 8, he could identify Golu: the appellant, one of them has put country- made pistol on him, and said that it is better to settle the account with Bunty. Then they all took out knives from their pocket and waist and started assaulting both of them. In his deposition he did not clarify that the appellant assaulted him or deceased. He ran away from the spot, then they started assaulting Bunty Upadhayay. He took lift and reached to Police Station. After some time, the Bunty has also reached there with injuries on his thigh, near penis and head etc. Accordingly, to P.W.-12 he could only identify the Golu a resident of Vyayamshala. Since there was sodium light, therefore, he would identity other also. He has further stated that Bunty recognized all the accused persons. On the basis of aforesaid Dehati Nalish, an FIR was registered against Golu and others. Bunty was taken to the District Hospital Ujjain where his condition was found serious hence he was referred to a higher centre for the purpose of surgery. He remained under treatment and operations were carried but he succumbed to injuries on 10.06.2008. At the time of admission to District Hospital, Ujjain, his dying declaration was recorded by Hariom Joshi (PW-11) Naib Tehsildar. In the brief dying declaration, the deceased has disclosed that he was sitting with Mahesh (P.W.- 12 ), near about 08/08:30 Golu came with his associates on motorcycles and started assaulting by knives. He was also assaulted by Golu and his friend. Upon asking, he disclosed that he was to take Rs. 600 from Golu, therefore he stabbed him. It is correct that in the dying declaration except 'Golu', the complete name of the appellant was not disclosed, no other identification of Golu was given. According to him, Golu and his friend stabbed 6 him. Therefore, there is no specific allegation that only this appellant caused the injuries by means of a knife out of 8. The prosecution could only find out the name of the present appellant and two others namely Jeevan and Nilesh. On the very first day, learned trial court has discharged the Jeevan and Nlish for want of evidence and framed the charges under Section 302 and 307 of I.P.C. against the appellant. Since the Mahesh has turned hostile in respect of injuries caused to him, hence the appellant has been convicted only on the basis of dying declaration whereas none of the witnesses has stated that the appellant alone did assault Bunty by means of a knife.
(10) It is important to mention here that no FSL report has been received to confirm the blood on the knife as well as on the cloth of the appellant. Even if it is believed that the dying declaration was recorded in a fit state of health condition even then there is no corroboration by any other evidence. There is no proper identification that the present appellant is commonly known by Bunty. The deceased died due to the injuries caused by the appellant alone and Mahesh i.e. the sole eyewitnesses has failed to identify him in dock identification. No TIP was conducted by the police. The knife was recovered from the water body (Jal Kumbhi) which is an open place. Therefore, the appellant has wrongly convicted only on the basis of the dying declaration. In the case of K. Ramachandra Reddy Vs. Public Prosecutor reported (1976) 3 SCC 618, the Apex court has said that the dying declaration must be scrutinised carefully and must ensure that such declaration is not the result of tutoring, prompting or imagination. In case of Raseed Beg Vs. State of M.P.(1974) 4 SCC 264, it has been held that whereby dying declaration is suspicious, it should not be acted upon without corroborative 7 evidence. In the case of Ram Manorath Vs. State of U.P. (1981) 2 SCC 654, the Apex Court has held that a dying declaration which suffers from infirmity cannot form the basis of conviction. The Apex Court has considered the aforesaid judgment in its recent judgment passed in the case of Jayamma and Another Vs. State of Karnataka (Criminal Appeal No.758 of 2020 dated 07.05.2021) and summarized law as under:
"15. It goes without saying that when the dying declaration has been recorded in accordance with law, and it gives a cogent and plausible explanation of the occurrence, the Court can rely upon it as the solitary piece of evidence to convict the accused. It is for this reason that Section 32 of the Evidence Act, 1872 is an exception to the general rule against the admissibility of hearsay evidence and its Clause (1) makes the statement of the decease admissible. Such statement, classified as a "dying declaration" is made by a person as to the cause of his death or as to the injuries which culminated to his death or the circumstances under which injuries were inflicted. A dying declaration is thus admitted in evidence on the premise that the anticipation of brewing death breeds the same human feelings as that of a conscientious and guiltless person under oath. It is a statement comprising of last words of a person before his death which are presumed to be truthful, and not infected by any motive or malice. The dying declaration is therefore admissible in evidence on the principle of necessity as there is very little hope of survival of the maker, and if found reliable, it can certainly form the basis for conviction."
(11) In the case of Khushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22 a Full Bench of the Supreme Court of India, specifically dealt with the evidentiary value of dying declarations. Their Lordships of the Supreme Court referred to a previous decision of the Supreme Court reported in AIR 1953 SC 420 (E), wherein it had observed that it was not safe to convict an accused merely on the evidence of dying declaration, without any corroboration. Their Lordships reproduced the observation as under:-
8"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declara- tion without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered.........
(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the.
circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night;"
(12) In the case of Laxman Vs. State of Maharashtra reported in 2002 AIR SCW 3479, Para 3;8 (2002) 6 SCC 710, a Constitution Bench of the Hon'ble Apex Court has held as under:
"The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical 9 opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
(13) As per the statement of Dr. Ahish Kumar Paal (PW-1) on 15.05.2008, who examined the deceased and found 5 lacerated wounds and referred him to R.S.O. surgery. According to him, all the injuries were caused by sharp-edged weapons. Dr. Yogendra Kumar Vyas (PW-14) medical officer has admitted Bunty to the surgical ward. According to him, his condition was serious his pulse was slow, his Blood Pressure was not recordable and his hands and legs were cold. He has described the injuries in para one of his deposition and thereafter stated that he performed the surgery of the lower abdomen where he found 2 and a half litre blood stored. The deceased remained in the treatment upto 19.05.2008, thereafter he was referred to the higher centre at 10 Indore. Neither Dr. Ashish Kumar Paal (PW-1) nor Dr Yogendra Kumar Vyas (PW-14) has stated that the deceased was in a fit condition to give a dying declaration despite knowing that his dying declaration has been recorded at 11:30 am. On 19.05.2008, the deceased-Bunty was admitted to Choithram Hospital, Indore where he remained under treatment of Dr. Pradeep Salgiya (PW-
19) for 21 days and succumbed to injuries on 10.06.2008. According to him, Bunty has gone into multi-organ failure and died due to infection all over the body and thrombosis. After the death, Dr. Bharat Prakash Bajpai (PW-18) conducted the autopsy and opined that he died because of the injuries and its complications, therefore, right from the first admission to District Hospital, the condition of Bunty was very critical and which could not be improved till his death. None of the four doctors has certified that he was in the fit state of mind or health to record the dying declaration. Indeed, it is not mandatory to have the certificate by the doctor before recording the dying declaration but looking to the injuries sustained to the Bunty and medical record, it is important to examine whether he was in a fit state of health to record the dying declaration. In such a situation, the trial court has wrongly convicted the appellant solely on the basis of dying declaration especially when Mahesh (PW-12) has not supported the case of the prosecution.
(14) As per the prosecution story, 8 miscreants have caused injuries to the deceased as well as Mahesh(P.W.-12) by means of knives. There is no evidence that this appellant alone assaulted Mahesh and Bunty. The other two accused has been discharged but he alone tried under Section 307 and 302 of I.P.C., therefore, we are unable to affirm the conviction of the appellant as he is entitled to the benefit of the doubt.
11(15) We have, therefore, no hesitation to hold that prosecution has failed to prove guilt against the appellant beyond a reasonable doubt. Failure to prove guilt against the accused beyond a reasonable doubt, the conviction of the appellant cannot be upheld. In this view of the matter, the appeal filed by the appellant deserves to be allowed. Accordingly, we pass the following order :
(i). Criminal Appeal No.1412/2010 filed by appellant Golu @ Lokesh is hereby allowed.
(ii) The judgment and order dated 22.11.2010 in Session Case No.633/2008 convicting the appellant for an offence punishable under Section 302 are hereby set aside.
(iii) Appellant-accused be set at liberty, if not required in any other case.
(iv) Fine amount if any deposited by the appellant, same be refunded to him.
The registry is directed to send back the Trial Court record forthwith along with the copy of this judgment.
Certified copy as per Rules.
( VIVEK RUSIA ) (SATYENDRA KUMAR SINGH )
JUDGE JUDGE
praveen
PRAVEEN NAYAK
2021.12.01 17:55:27 +05'30'