Madhya Pradesh High Court
Harish Yadav vs State Of M.P on 18 April, 2017
AFR
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No.699 of 1994
Harish Yadav
Vs
State of Madhya Pradesh
Present : Hon. Shri Justice S.K.Gangele
Hon. Shri Justice Anurag Shrivastava
Shri Prakash Gupta, who is an Advocate in the Panel of Legal
Aid appears on behalf of appellant at the request of the
Court.
Shri Vivek Lakhera, P.L. for respondent/State.
JUDGMENT
(18.4.2017) Appellant has filed this appeal against the judgment dated 2.5.1994 passed in Sessions Trial No.131/1992 by Ist Additional Sessions Judge, Shahdol. The appellant has been tried for commission of offence punishable under sections 302 of IPC. The trial Court after trial convicted the appellant for commission of offence punishable under section 302 of IPC and awarded sentence of life.
2. The prosecution story in brief is that on 29.6.1992 at around 12 o'clock near Shivam Hotel both the accused persons Harish Yadav and Balli alias Rajesh had beaten the deceased. After hearing the cry of deceased, Suresh, Dinesh and Khoobchadra reached on the spot and they had tried to 2 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. pacify the quarrel. The deceased Bhupendra alongwith his father Khoobchandra reached at the police station within 35 minutes of the incident and lodged the report Ex.P-22. Thereafter he was admitted in the hospital. He died on 18.7.1992. After his death the police conducted the investigation and filed the chargesheet. The accused persons were tried for commission of offence punishable under section 302 read with section 34 of IPC. They abjured the guilt.
3. The trial Court acquitted the co-accused Balli alias Rajesh from the offence and convicted the present appellant for commission of offence punishable under section 302 of IPC and awarded sentence of life and fine of Rs.100/-. The trial Court relied on the FIR Ex.P-22 lodged by the deceased himself and treated it as dying declaration. The trial Court acquitted the co-accused Balli @ Rajesh from the charge on the ground that deceased did not mention his name in the FIR Ex.P-22, however the prosecution witnesses who are eye witnesses P.W.3 Dinesh and P.W.5 Raju deposed that accused Balli had inflicted blow of rod on the head of person of deceased. The trial Court disbelieved the aforesaid prosecution witnesses on the ground that the deceased did not mention the name of co-accused Balli in the FIR.
4. It is an admitted fact that these two prosecution witnesses P.W.3 Dinesh and P.W.5 Raju, who are the eye witnesses did not mention the fact that present appellant had inflicted any injury on the person of the body of deceased. P.W.2 Khoobchandra, father of deceased Bhupendra deposed that on 29.6.1992 at around 12 o'clock he was present in the quarter. At that time P.W.3 Dinesh, who is his nephew came 3 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. to him and told him that Harish Yadav and Bali had beaten deceased Bhupendra and thereafter they went on the spot and found that his son was lying on the spot and Harish and Balli were running from the spot. Harish Yadav was having lathi (stick) and Balli was having rod in their hands. Thereafter he had taken his son on a rickshaw to the police station and lodged the report and then his son was brought to the hospital. After 19 days of the incident his son died. In his cross-examination he admitted the fact that he did not mention in his statement recorded by police Ex.P-1 that Balli was armed with rod and accused with lathi. P.W.3 Dinesh is the eye witness. He deposed that both the accused persons met him and deceased near Shivam lodge. Both had abused him and thereafter Harish had tried to hit by stick (danda), however he saved himself and then another co-accused Balli had inflicted a blow of rod on the head of the deceased. The deceased fell down and the accused persons ran away from the spot. After 15 to 20 days deceased died. He denied the fact that any seizure was made before him. In his cross- examination, he admitted the fact that Harish had not inflicted blow of lathi on Bhupendra and P.W.4 Suresh deposed that on 29.6.1992, he was coming from Kotwali alongwith his wife, he saw that accused Harish was abusing to his bhabhi Beti Bai and accused Balli was present with him. He tried to prevent Harish, but he had inflicted injury to him and when he returned back and reached near Shivam Hotel he had seen Harish and Balli armed with danda and rod were running away, thereafter he had taken Bhupendra to police station and report of the incident was lodged.
5. A panchanama of dead body was prepared, which is Ex.P-2. A rod was seized from the present appellant on his 4 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. memorandum. P.W.5 Raju deposed that at around 12 o'clock he had seen that Bhupendra and Dinesh were going to their house on a bicycle, the accused Balli stopped them and abused them and at that time Balli had inflicted a blow of rod on the head of deceased Bhupendra and Harish tried to beat Dinesh, however he ran away.
6. Dr.Ajit Gupta (P.W.7) deposed that he was posted as Assistant Surgeon on 29.6.1992 at District Hospital, Shahdol had examined deceased Bhupendra and noticed following injuries :-
^^mlds 'kjhj ij dsoy ,d ckgjh pksV ekStwn Fkh tks fuEu izdkj dh FkhA ,d flyk gqvk iVVh ca/kk gqvk ?kko ftlds Åij nks Vkads yxs gq;s Fks] rFkk tks flj ds cka;h vksj ekFks ij HkkSag ls yxHkx vk/kk bap Åij ekStwn Fkh] rFkk ftldk vkdkj 3 ls-eh x vk/kk ls-eh- x gMMh dh xgjkbZ rdA rFkk tks [kksiM+h ds vUnj dh gMMh QsUVy cksu o ftlesa izksu Mkyus ij o mlds QszUVy cksu ds Hksts dh xgjkbZ esa 3 ls-eh- rd x;k gqvk Fkk] rFkk mlls Hksts ds cka;s lsjsczy dk Hkkx fudy jgk FkkA ml ?kko ls ckgj rFkk mlesa ls bUQsDVsV il LyQ fMLpktZ gks jgk FkkA mDr 'ko dk ijh{k.k djus ij ns[kk fd ckgjh :i ls 'kjhj :X.k voLFkk esa Fkk rFkk Åij crkbZ xbZ ,d pksV ds vykok 'kjhj ij vkSj dksbZ pksV ugha FkkA 'ko dk vUrfjd ijh{k.k djus ij ;g ik;k x;k fd [kksiM+h esa QzsUVy cksu esa ?kko ds uhps QszDpj Fkk] rFkk mlesa ls Hksts dk xzseasVj fudy jgk FkkA Hksts dh f>Yyh ?kko ds uhps QVh gqbZ FkhA ck;ka lsjsczy Hksts dk ? kko ds uhps QVk gqvk FkkA mlls bUQsDVsM LyQ fMLtkpZ fudy jgk FkkA mldh daB ,oa 'okl uyh cka;k] QsQM+k] iSjhdkfMZ;e dtsLVsV Fks gn; dk nk;ka izdks"B [kwu ls Hkjk FkkA ck;ka izdks"B [kkyh FkkA vk¡rksa dh f>Yyh] isV] datsLVsM Fks ,oa [kkyh FksA mldh NksVh ,oa cM+h v¡kr datsLVsM Fkh cM+h v¡kr esa ey iznkFkZ ekStwn FkkA ;d``r Iyhgk] xqnsZ] ew=kl; datsLVsM FksA ew=kl; [kkyh FkkA^^ These injuries were caused by sharp edged weapon.
7. P.W.8 Dr.Pradeep Kumar Khare deposed that he was posted as Assistant Surgeon on 18.7.1992 at District Hospital, 5 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. Shahdol and had conducted the postmortem of deceased who was admitted in the hospital on 29.6.1992 and died on 18.7.1992. He had noticed only one injury on the person of the body of deceased; size of the injury was 3 cm x ½ cm upto muscle deep. Except this injury there was no injury on the person of the body of deceased. In para 5 of the cross examination he deposed that the injury was caused by hard and penetrating weapon. The injury could not be caused by any lathi or rod. Dr.Ajit Gupta (P.W.7) who conducted the MLC at initial stage deposed that deceased was in drowsy condition and noticed smell of liquor was coming from the mouth of deceased. Except this evidence there is no other evidence.
8. The eye witnesses P.W.3 Dinesh and P.W.5 Raju produced by the prosecution deposed that accused Balli had caused injury on the head of the deceased. They did not state that the present appellant had caused any injury on the person of the body of deceased. The trial Court discarded their version and relied on the report Ex.P-22 lodged by the deceased himself. In the aforesaid report, it was stated that the present appellant had caused injury on the head of deceased by a lathi, however this version is contrary to the evidence of Dr.Ajit Gupta (P.W.7), who conducted MLC of the deceased and P.W.8 Dr.Pradeep Kumar Khare, who performed postmortem of the deceased. Both the Doctors have deposed that the injury which they noticed on the head of person of the body of deceased could not be caused by hard and blunt object. Another fact is that FIR was lodged on 29.6.1992 and deceased died on 18.7.1992 after a period of 19 days. P.W.2 Khoobchandra, father of deceased Bhupendra deposed in para 3 of the examination-in-chief that when he 6 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. lodged the report at the police station his son and he had signed the report, however in para 10 he deposed that his son was unconscious.
9. The Apex Court in the case of Bhajju alias Karan Singh Vs. State of Madhya Pradesh [(2012) 4 SCC 327] has held as under in regard to conviction on the basis of dying declaration :-
"26. The law is well settled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the court, the same may be refused to be accepted as forming basis of the conviction.
27. Another consideration that may weigh with the court, of course with reference to the facts of a given case, is whether the dying declaration has been able to bring a confidence thereupon or not, is it trustworthy or is merely an attempt to cover up the laches of investigation. It must allure the satisfaction of the court that reliance ought to be placed thereon rather than distrust.
28. In regard to the abovestated principles, we may refer to the judgments of this Court in Ravikumar v. State of T.N., Vikas v. State of Maharashtra, Kishan Lal v. State 7 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. of Rajasthan Laxmi v. Om Prakash and Panchdeo Singh v. State of Bihar
29. In Jaishree Anant Khandekar v. State of Maharashtra6, discussing the contours of the American law in relation to the "dying declaration" and its applicability to the Indian law, this Court held as under: (SCC p. 654, paras 24-25) "24. Apart from an implicit faith in the intrinsic truthfulness of human character at the dying moments of one's life, admissibility of dying declaration is also based on the doctrine of necessity. In many cases victim is the only eyewitness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice.
25. American law on dying declaration also proceeds on the twin postulates of certainty of death leading to an intrinsic faith in truthfulness of human character and the necessity principle. On certainty of death, the same strict test of English law has been applied in American jurisprudence. The test has been variously expressed as 'no hope of recovery', 'a settled expectation of death'. The core concept is that the expectation of death must be absolute and not susceptible to doubts and there should be no chance of operation of worldly motives."
30. It will also be of some help to refer to the judgment of this Court in Muthu Kutty v. State where the Court, in para 15, held as under: (SCC pp. 120-21) "15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the 8 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat (SCC pp. 480-81, para 18) '(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.)
(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 and Ramawati Devi v. State of Bihar)
(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.)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P.)
(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.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P.)
(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.) 9 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P.
(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.)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look 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.)
(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.)
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra.)"
The principle of law is well settled that if in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration. The Apex Court in the case of State of U.P. Vs. Madan Mohan [(1989) 3 SCC 390] has held that if the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
10. In the present case, the father of deceased P.W.2 Khoobchandra himself deposed that he lodged the report and his son signed the same Ex.P-22. The eye witnesses P.W.3 10 Cr.A.No.699/1994 Harish Yadav Vs. State of M.P. Dinesh and P.W.5 Raju deposed that another co-accused Balli had caused injury on the person of body of deceased by rod, the co-accused has been acquitted by the trial Court, the deceased died after 19 days from the date of recording of FIR Ex.P-22 which has been treated as dying declaration. P.W.7 Dr.Ajit Gupta and P.W.8 Dr.Pradeep Kumar Khare, deposed that the injury sustained by the deceased could not be caused by hard and bunt object i.e., lathi.
11. As per the prosecution case, the present appellant was armed with lathi (danda) and same was seized from him. In such circumstances in our opinion the trial Court has committed error of law in convicting the appellant for commission of offene under section 302 of IPC solely relying on the dying declaration. There is no other evidence, except the dying declaration against the appellant produced by the prosecution.
12. Consequently the appeal filed by the appellant is allowed. The judgment of the trial Court is hereby set aside. The appellant is acquitted from the commission of the offence punishable under section 302 of IPC. The appellant is on bail. His bail bonds shall stand discharged.
(S.K.GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
M