Allahabad High Court
Shaloo @ Manjeet Pandey And Another vs State Of U.P. on 23 March, 2018
Bench: Amreshwar Pratap Sahi, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on : 15.2.2018 Delivered on: 23.3.2018 A.F.R. Court No. - 40 Case :- CRIMINAL APPEAL No. - 727 of 2011 Appellant :- Shaloo @ Manjeet Pandey And Another Respondent :- State Of U.P. Counsel for Appellant :- Rajendra Tiwari,D.S.Khan,G.P.Dikshit,Mangla Prasad Rai,Rajiv Chaudhary,Suresh Chandra,Suresh Kumar Verma Counsel for Respondent :- Govt.Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra, J.)
1. The present Criminal Appeal stems out of the judgement and order dated 08.02.2010 passed by the Additional Sessions Judge, Court No.-8, Varanasi in S.T. No. 384 of 2007 (State Vs. Shaloo @ Manjeet Pandey and another) convicting the accused appellants under Section 302/34 I.P.C., and sentencing them for life imprisonment with a fine of Rs. 10,000/-. Upon failure to deposit the fine the accused appellants are to further under go additional imprisonment of one year. The period of sentence already under gone is to be adjusted towards the period of sentence so awarded.
2. Before adverting to the prosecution story as unfolded in the F.I.R., the back ground facts as emerging from the evidence of the three prosecution witnesses of facts i.e. P.W. -1, P.W.-2 and P.W.-3 need to be noticed for better appreciation of the motive alleged behind the cause of occurrence, the circumstantial evidence which will complete the chain of events leading to the occurrence for which prosecution has been launched against the accused appellants, the credibility of the oral dying declarations alleged to have been made by the deceased implicating the accused appellants in the commission of the crime in question for which they have been charged and the defence set up by the accused-appellants in opposition to the aforesaid.
3. One Ganga Saran Misra was working as a Manager in a Dharmsala situate at Pisach Mochan, Varanasi owned by Girish Chand Misra. As such Ganga Saran Misra was the employee of Girish Chand Misra. Satisfied with the hard work, honesty and integrity of Ganga Saran Misra the owner of the Dharmsala namely, Girish Chand Misra gave a shop situate in the Dharmasala to Ganga Saran Misra on rent. Ganga Saran Misra opened a service centre in the rented shop in the name and style of Balaji Service Center. Seven years before the occurrence, Ganga Saran Misra inducted one of the accused Shaloo Pandey (who happens to be the son of his sister) in the running of the service center with the understanding that the accused Shaloo Pandey will run the service center and give one half of the net profit to Ganga Saran Misra. As such, Shaloo Pandey started running the aforesaid service center. One year before the occurrence, some verbal altercation took place between the accused Shaloo Pandey and Ganga Saran Misra. The accused Shaloo Pandey took the stand that he alone shall run the service center and thus would not part with the profits of the same. The situation did not rest here. On 8.7.2007, the accused Shaloo Pandey misbehaved with Ganga Saran Misra and exchanged hot words with him. Feeling desperate, Ganga Saran Misra commanded the accused Shaloo Pandey to vacate the shop within 15 days. This was taken as a challenge by Shaloo Pandey and he retorted by stating that only if Ganga Saran Misra survives for 15 days, he will be able to get the shop vacated.
4. On 10.7.2007, the marriage reception of one Vikas Pandey was scheduled at Pallavi Hotel, Varanasi. Ganga Saran Misra along with Mikky Rai left his home at 7:30 pm to attend the aforesaid marriage reception. At 9:15 p.m., the accused persons along with four other unknown men came to Pallavi Hotel and took Ganga Saran Misra along with them.
5. Thereafter, according to the prosecution case the accused-appellants are alleged to have assaulted Ganga Saran Misra (the injured) inflicting deep and grievous injuries on his body. Having assaulted the injured in a manner that would virtually leave him dead, the accused persons abandoned him near the railway track on the outer side of the railway Station which is a lonely place in hope that he would die soon. However, as luck could have it, the pain and agony of the injured attracted the attention of some people and a small crowd gathered around him. At this point of time, P.W.-4, who is a Constable Driver, was returning from his home in District-Basti alighted from Tulsi Express at the railway station which he had boarded at Ayodhya for his onward journey to Sonbhadra to join his duty. To quickly reach the bus stand, P.W.-4 took a shortcut and followed the path along the desolated railway track. On his way, P.W.-4 saw a small crowd, which had assembled across the railway track and to satisfy his eagerness regarding the presence of the crowd in a lonely and desolated place, he stopped. Thereafter, it was gathered by him that an injured person was lying who was bleeding profusely from his head and legs. It appears that P.W.-4 being a man of benevolent character entered into a dialogue with the injured and having got acquainted with the entire occurrence gave a phone call from his mobile number 9450377754 at the land-line Phone number 0542-2420191 of the injured. The aforesaid call which was made at around 10:30 pm was picked up by Poonam Misra the daughter of the injured to whom the injured narrated the entire occurrence and requested for being immediately rushed to Hospital. On this Poonam Misra instantly informed her mother Gayatri Misra, her brother Pawan and her father-in-law Rama Shanker who were sitting in the courtyard of the house of the injured situate in Dharmashala. Thereafter, she informed Ganga Chandra Misra the elder brother of the injured by telephone as well, regarding the critical condition of her father and the place where he was lying unattended. On this Smt. Gayatri Misra accompanied by her son Pawan and Rama Shanker Misra (Samdhi) proceeded to the Railway Station where the injured was lying on a Auto-Rickshaw. Simultaneously, Ganga Chandra Misra, the first informant also proceeded to the place where the injured was lying. Thereafter, Smt. Gayatri Misra and others recovered the injured and proceeded to get him admitted to Heritage Hospital, Varanasi and while they were on their way to Heritage Hospital, the first informant Ganga Chandra Misra met them. The injured was accordingly admitted to Heritage Hospital as is evident from Exbt. Ka.-10 and Exbt. Ka.-11. Subsequently, the injured died on 11.7.2007 at 1:35 am.
6. Accordingly, an F.I.R. dated 11.07.2007 came to be lodged by the first informant Pandit Ganga Chandra Misra (Brother of the deceased) with the police station Chet Ganj District Varanasi, registered as Case Crime No. 123 of 2003 under Section 147/307 I.P.C. P.S. Chet Ganj, District Varanasi. A perusal of the said F.IR. will go to show that the same was lodged on 11.7.2007 at 1.35 PM and the accused appellants were named in the F.I.R. The place of occurrence was shown as Pallavi Hotel, Chet Ganj Varanasi, but the distance between the place of occurrence with the police station was not mentioned.
7. The panchayatnama/inquest of the body of the deceased was got conducted by P.W.-7, S.I. Ramayan Yadav, posted at Police Station Lanka, District Varanasi on 11.7.2007. The inquest/panchaytnama of the deceased as per the Panchayatnama/inquest report commenced at 9.30 PM and concluded at 11.05 PM. In the opinion of the Panch witness the cause of death was on account of the injuries which were found on the body of the deceased Ganga Saran Misra. As such the death of Ganga Saran Misra (the deceased) was characterized as Homicidal.
8. Thereafter the postmortem of the body of the deceased was conducted on 11.7.2007 by Dr. Om Prakash Singh (P.W.-5). According to the Doctor, the cause of death of the deceased Ganga Saran Misra was as a result of head injuries contributed by hemorrhage and shock due to aforesaid injury. The following injuries were found on the body of the deceased :-
1. Stitched wound 2 cm on right eye brow and forehead 2 cm outer to middle.
2. Lacerated wound 4 cm x 1.5 cm x scalp deep on the left side of head, 12 cm above right eye brow and 2 cm outer to middle.
3. Abraded contusion 18 cm x 10 cm on the back outer aspect of right of lower abdomen.
4. Multiple abrasion in an area of 16 cm x 6 cm on the front of right chest upper part.
5. Multiple abraded contusion 12 cm x 5 cm on the lateral aspect of left chest and abdomen.
6. Multiple abraded contusion in an area of 10 cm x 4 cm from back of left elbow and forearm.
7. Grossed abrasion 14 cm x 8 cm on the front and outer aspect of upper part of left thigh.
8. Left leg crushed amputated and missing 0.30 cm below knee joint.
9. Right leg crushed, 32 cm below right knee.
9. After the aforesaid formalities were got completed, the Investigating Officer, in discharge of his duty to undertake the statutory investigation of the occurrence in terms of chapter XII Cr.P.C. proceeded with the investigation of the case. The Investigating Officer recovered the blood stained stone found near the railway track (Exhibit Ka. 15) prepared the site plan (Ext. Ka-14 ) collected the documents relating to the medical treatment given to the deceased (Ext. Ka-11 and Ext. Ka-12) and the documents relating to the commercial relationship between the accused and the deceased (Ext. Ka.-2). The Investigating Officer further recorded the statement of the various witnesses under Section 161 Cr.P.C.
10. Upon completion of the investigation the Investigating Officer formed an opinion that a charge-sheet should be submitted against the accused persons. As such a charge-sheet dated 20.07.2007 (Ext. Ka.1) was submitted whereby the accused appellants were charge-sheeted for an offence punishable under Section 302 I.P.C.
11. Subsequent to the submission of the charge-sheet, the C. J. M., Varanasi took cognizance vide order dated 31.07.2007. Ultimately the case was committed to the court of sessions vide committal order dated 22.8.2007.
12. Accordingly S.T. No. 384 of 2007, State Vs. Shaloo @ Manjit Pandey and Another) came to be registered in the court of the Additional Sessions Judge/ F.T.C Court No. 2, Varanasi. The Sessions Judge vide order 05.09.2007 framed the charge against the accused appellants relating to an offence punishable under Section 302/34 I.P.C.
13. The accused appellants denied the charges so framed against them and demanded trial.
14. The prosecution in support of its case adduced the following witnesses namely:-
P.W. 1 Ganga Chandra Misra- First Informant P.W. 2 Poonam Misra - Witness of fact P.W. 3 Gayatri Misra - Witness of fact P.W. 4 Driver Constable Suresh Kumar Dubey - witness of fact.
P.W. 5 Dr. Om Prakash Singh- The Doctor, who conducted the postmortem.
P.W. 6 Janardan Pandey- Police Constable P.W. 7 Ramayan Yadav - SI, P.S. Lanka, who got conducted the panchayatnama.
P.W. 8 Dr. Sudhir Kumar Gupta- Treated the deceased at Heritage Hospital P.W. 9 Chandrasekhar Gupta- Dy. S.P., Investigating Officer
15. Apart from adducing the aforesaid witnesses the prosecution also relied upon documentary evidence which were duly marked as Exhibits. The same are catalogued herein below:
Ext. Ka.1 Written report dated 11.7.2007 Proved by P.W.1 Ext. Ka.2 Partnership Agreement Proved by P.W. 3 Ext. Ka.3 Post-Mortem Report Proved by P.W. 5 Ext. Ka.4 F.I.R.
Proved by P.W. 6 Ext. Ka.5 Carbon copy of G.D. Proved by P.W. 6 Ext. Ka.6 Panchayatnama Proved by P.W. 7 Ext. Ka.7 Photonash Proved by P.W. 7 Ext. Ka.8 Form No.13 Proved by P.W. 7 Ext. Ka.9 Letter dated 11.7.2007 by P.S. Lanka, C.M.O, Varanasi for conducting the post-mortem of the deceased Proved by P.W. 7 Ext. Ka.10 Injury report of Ganga Saran Proved by P.W. 8 Ext. Ka.11 Site Plan Proved by P.W. 8 Ext. Ka.12 Report of Medico legal case Proved by P.W. 8 Ext. Ka.13 Report of Medico legal case Proved by Dr. Ashutosh Kumar Ext. Ka.14 Site Plan Proved by P.W. 9 Ext. Ka.15 Recovery Memo of blood stained clothes Proved by P.W. 9 Ext. Ka.16 Recovery Memo of supurdaginama of Agreement letter Proved by P.W. 9 Ext. Ka.17 Site plan Proved by P.W. 9 Ext. Ka.18 Charge Sheet Proved by P.W. 9
16. The accused appellants neither adduced any documentary evidence to prove their innocence nor they produced any witness in support of their innocence or false implication in the crime in question.
17. After the prosecution witnesses were examined, the accused-appellants were examined under Section 313 Cr.P.C. and all the incriminating material/circumstances were put to them one by one. The accused-appellants denied most of the allegations levelled against them by repeatedly saying that it is false. However, the relationship of the accused-appellants with the deceased was admitted. Secondly, the occurrence was also admitted with the rider that the landlord wanted to get the rental shop vacated and therefore, he is responsible for the occurrence as is evident from the reply of the accused-appellants to question no. 12. We shall deal with the effect of these two circumstances disclosed by the accused-appellants in the later part of the judgement.
18. On behalf of the accused-appellants the following submissions were made before the Court below to dislodge the charge framed against them:
(1) It is the admitted case of the prosecution that the deceased along with Mikky Rai together went to attend the marriage reception of Vikas Pandey at Pallavi Hotel. It is further alleged that the accused persons along with others took the deceased from Pallavi Hotel. Thus, Mikky Rai was the best person to prove the last seen theory. However, Mikky Rai has not been produced in evidence by the prosecution who could have proved the presence of the deceased and the accused appellants at Pallavi Hotel.
(2) The motive alleged against the accused-appellants for committing the crime has not been proved.
(3) Little Pandey is not at all associated with the crime.
(4) The oral dying declarations alleged to have been made by the deceased are not reliable.
(5) Apart from the named accused there are four other unnamed accused persons mentioned in the F.I.R. for whom no details have been mentioned in the F.I.R. nor any investigation has been made.
(6) There is delay in the lodging of the F.I.R.
(7) Who got the injured/deceased admitted to Heritage Hospital is not proved.
(8) The statement of P.W. 4 has been recorded with delay on 19.7.2007.
(9) P.W. 4 is not a reliable witness as his conduct is dubious.
(10) How the injured reached the place from where the injured was recovered i.e. the footpath along the railway track is not discernible.
(11) As per the statement of P.W. 5 the Doctor, who conducted the postmortem, it was opined that the injuries found on the body of the deceased could have been caused by falling from a moving train.
(12) The prosecution case against the accused appellants is not proved beyond reasonable doubt.
(13). The implication of the accused-appellants is on the basis of the information disclosed by the injured and those whom the injured had informed.
19. The court below duly considered the submissions so raised in the light of the evidence on record and elaborately dealt with the same. However, upon evaluation none of the submissions so made were found sufficient enough to dislodge the charge levelled against the accused-appellants.
20. A perusal of the judgement of the Court below will go to show that on the issue regarding the failure of the prosecution to produce Mikky Rai, as a witness, the Court below fairly observed that it is the admitted prosecution case that the deceased had gone to attend the marriage reception of Suresh Pandey along with Mikky Rai at Pallavi Hotel. It is from Pallavi Hotel that the accused persons took the deceased. However, the failure to adduce Mikky Rai will not in any way either dilute the prosecution case, nor can the same result in the failure of the prosecution so launched against the accused persons. The Court below accepted the reason assigned by the prosecution that Mikky Rai could have been a good witness to prove the presence of the deceased and the accused persons at Pallavi Hotel. However Mikky Rai because of the relationship is a related witness. People living in urban areas because of relationship avoid giving evidence and thus failure to produce Mikky Rai will not have any adverse effect on the prosecution case. Apart from the aforesaid, the Court below found that the prosecution case is based on circumstantial evidence and primarily on oral dying declarations of the deceased. As such, the failure to adduce Mikky Rai will not have the effect of terminating the prosecution case as the same can be established from the other evidence on the record.
21. Regarding the issue that P.W.1 Ganga Chandra Misra is an interested witness and therefore his testimony cannot be relied upon, the Court below found that the entire manner of occurrence came to the knowledge of P.W.2 Poonam Misra the daughter of the deceased on telephone. Upon hearing the entire episode, P.W.1 became active and proceeded towards the bus stand and met the injured who was being taken to hospital by Gayatri Devi (wife), Pawan Misra (Son) and Rama Shanker Misra (Samdhi). Accordingly, P.W.1 also proceeded towards Heritage Hospital, Varanasi, where ultimately the deceased died. The entire chain of events happened in such a short time that it shall form part of the same transaction and will fall in the category of Res-Gestae and therefore relevant under Section 6 of the Evidence Act.
22. While dealing with the contradiction regarding the mobile number which has come in the statement of P.W. 2 Poonam Misra and that mentioned in the F.I.R., the Court below examined the testimony of P.W.2 Poonam Misra and found that the deceased had called on the land line phone at his home. The court below held that every basic land line telephone does not have the facility of displaying the phone number from which the call is coming. Therefore, the presumption drawn by P.W. 2 that her father had called from his mobile number is a natural presumption. P.W.2 had recognized the voice of her father and therefore, continued to hear him. As such, the aforesaid discrepancy is not such which could belie the prosecution case. The explanation offered by the prosecution regarding the above is a plausible explanation.
23. The Court below further considered the submission made on behalf of the defence that the motive behind the occurrence is not proved. As the case is based upon circumstantial evidence therefore motive behind the occurrence is a very important aspect required to be duly established. Upon evaluation of the entire evidence, particularly, that of P.W.2 and P.W.3, the Court below found that the dispute between the deceased and the accused was in respect of a shop and due to aforesaid reason the crime was committed. Consequently, the motive behind the occurrence was found to be duly established.
24. It was also contended before the court below that Little Pandey is not associated with the crime in question. The Court below relying upon the oral dying declaration given by the deceased to his daughter P.W.2 Poonam Misra held that the injured has himself implicated two persons i.e. the accused appellants in the commission of crime. Therefore, the submission made on behalf of the defence that Little Pandey is not associated with the crime was found to be misconceived.
25. On the point of oral dying declarations being unreliable as alleged by the defence , the Court below relying upon the oral testimony of P.W.4 Constable-Driver Suresh Kumar Dubey found that the deceased had talked to his daughter P.W.-2 Poonam Misra on the mobile phone belonging to P.W.4. This fact stands corroborated by the statement of P.W.3 Gayatri Misra. Further the Court below took the view that a dying man will not lie which also is borne out from the evidence that the deceased had no enmity with any other person or the deceased was traveling by train and while alighting he fell down and sustained injuries. Further at the time, when P.W.4 met the injured/ deceased he was conscious and consequently, disclosed the entire episode. It was pursuant to this information that the deceased was taken to Heritage Hospital, which is a private hospital, by his family members. Thus, the aforesaid facts clearly prove that sanctity of the oral dying declarations made by the deceased.
26. Regarding the point urged by the defence that who got the injured admitted to heritage hospital is not proved from the record, the Court below examined the said issue in the light of the documentary evidence on the record. Referring to Ext. Ka- 10 and Ext. Ka.- 11 the Court below found that Ext. Ka-10 contains a clear recital that the injured was got admitted by Birendra Kumar Misra and Raj Kumar Misra. Similarly, Ext-Ka-10 contains the name of Pawan Misra. While Pawan Misra is the son of the deceased, Birendra Kumar Misra and Raj Kumar Misra are the brothers of the deceased. The signatures of the aforesaid three persons are found missing on the aforesaid two documents. However, the absence of the same will not by itself lead to the conclusion that the accused was got admitted to Heritage Hospital which is a private hospital as an unattended person. The omission to get the signatures of the aforesaid three persons appears to be bonafide as the deceased was in a critical stage and the entire effort was to save the deceased. As such, the said submission was also not found sufficient enough to dislodge the prosecution case.
27. To doubt the prosecution case, it was submitted on behalf of the defence that the statement of P.W. 4 Driver (Constable) Suresh Kumar Dubey was recorded with delay, i.e., on 19.7.2007. The F.I.R was lodged on 11.7.2007 and eight days thereafter the statement of P.W. 4 was recorded under Section 161 Cr.P.C. The recording of the statement after eight days cannot lead to the conclusion that it was on account of malicious motive or to be taken as a ground to doubt the credibility of the same.
28. The prosecution story was further challenged on the ground that in the oral dying declaration made by the deceased to P.W. 4 Driver Suresh Kumar Dubey he has used the word Bhanja. As such, the deceased did not named the accused person whereas there are four Bhanjas of the deceased. The conduct of the witness is not natural. This witness should have first inform the G.R.P. at the railway station and thereafter taken the deceased to the hospital. Regarding the non disclosure of the names of the accused, the same is neither unnatural nor does it doubt the genuineness of the prosecution story. P.W.4 in his conversation with his daughter Poonam Misra has mentioned the manner of occurrence and the names of the accused persons who assaulted the deceased. Therefore, the truthfulness of the prosecution case cannot be doubted only on the ground that the names of the accused persons were not disclosed by the deceased P.W.4. Regarding the conduct of P.W. 4, the Court below undertook an in depth analysis of his testimony and concluded that P.W.4 is a chance witness. His presence at the place where the injured was lying is by chance. The same is natural and this witness has mentioned the sequence of his reaching the place where the injured was lying.
29. Another ground taken to doubt the prosecution case was stated that the injured was not found on the railway track but on the footpath of the raod. How the injured reached there is shrouded in obscurity, as there is no evidence regarding the same. The court below considered the statement of the prosecution witness of fact and found it to be trustworthy. On that basis the trial court clearly narrated the sequence of events leading to the presence of the injured near the railway track.
30. On the aforesaid findings, the trial court convicted the accused appellants of the charge leveled against them and consequently sentenced them to life imprisonment for having committed an offence punishable under Section 302/34 IPC.
31. Thus feeling aggrieved by the judgement and order dated 08.02.2010 passed by the court below, the accused-appellants have filed the present criminal appeal.
32. Before proceeding to consider the various submissions urged by the learned counsel for the appellants in support of the appeal, it will be prudent to notice the distinguishing facts of the case which we have noticed at the time of the hearing of the appeal for better and judicious evaluation of the submissions made before us in the light of the evidence on record and the law as laid down by the Apex Court/ this Court on the legal issues arising therefrom.
A. The accused and the deceased are related to each other as the deceased is the Mama (mother's brother) of the accused-appellants.
B. According to the prosecution, there is strong motive against the accused-appellants to commit the crime because of existing enmity regarding the shop belonging to the deceased and run by one of the accused Shaloo Pandey.
C. There is no eye witness account of the occurrence giving rise to the prosecution launched against the accused.
D. The F.I.R. dated 11.07.2017 came to be lodged against the accused-appellants on the basis of the telephonic conversation made by the injured / deceased -Ganga Sharan Misra with his daughter Poonam Misra P.W.-2 from the mobile phone of P.W. 4 Constable -Driver, Suresh Kumar Dubey, who was returning from home for reporting at his place of posting.
E. P.W.-4, Janardan Pandey is a chance witness as well as an independent witness and much will depend upon the testimony of this witness, if he is accepted as a credible and reliable witness.
F. The F.I.R. has been lodged on 11.07.2007 at 1.35 PM under sections 147/307 I.P.C., P.S. Chet Ganj, District-Varanasi whereas the death of the injured had taken place on 11.07.2007 at 1:30 am.
G. The incident has occurred on 10.07.2007 whereas the F.I.R. has been lodged on 11.07.2007. As such according to the defence, there is delay in lodging of the F.I.R for which there is no explanation, which in turn makes the prosecution case doubtful.
H. In the F.I.R., two named and four unnamed persons have been implicated. However, there is no mention of the four other unknown accused persons nor any investigation has been made by the Investigating Officer in that regard.
I. The F.I.R. was lodged on 11.07.2007 whereas the charge-sheet has been submitted on 20.07.2007 that is within a span of nine days from the date of the lodging of the F.I.R., which creates a serious doubt regarding the truthfulness of the prosecution case.
J. There are two oral dying declarations of the deceased.
(1). Declaration given by the injured / deceased to P.W.-4, Constable-Driver, Suresh Kumar Dubey.
(2).Declaration given by the injured / deceased to P.W.-2, Poonam Misra his daughter.
K. In the first oral dying declaration made by the injured/deceased P.W.4 Constable Driver Suresh Kumar Dubey, the accused-appellants have not been named in the commission of the crime. The injured/deceased has only mentioned the word 'Bhanja'.
L. In the second oral dying declaration made by the injured / deceased to P.W.2 Poonam Misra, the accused appellants have not been named in the commission of the crime.
M. It is the admitted case of the prosecution that the deceased along with Mikky Rai together went to attend the marriage reception of Vikas Pandey at Pallavi Hotel. The accused persons are alleged to have taken away the deceased from Pallavi Hotel. Thus Mikky Rai was the best evidence to prove the presence of the deceased and the accused at Pallavi Hotel, Varanasi.
N. In the F.I.R. reference is made to Mobile No. 9839930804 from which the injured/deceased informed at his home about the occurrence whereas in the statement of P.W.-1 there is a complete silence regarding the number of the Mobile Phone from which information was given. P.W.-2 in her testimony has stated that the injured/deceased had two mobile numbers one of them is 6415694642 but she does not remember the number of another mobile phone belonging to her father, i.e., the deceased. P.W.-2 has further not stated the number of the Mobile Phone from which the call was made to her but has denied the factum of the call being made from Mobile No. 9839930804. P.W.-3 has not given the number of the Mobile from which information was given by the injured/deceased. P.W.-4 in his statement has stated that the call was made from Mobile No. 9450377754 by the deceased which belongs to him.
O. On account of the nature of injuries sustained by the injured/deceased, he would have became unconscious and therefore, the injured could not have made the oral dying declarations alleged to have been made by him to P.W.4 and P.W.2.
P. The case in hand hinges upon circumstantial evidence. As such, the burden is upon the prosecution to prove the entire chain of events which according to the defence the prosecution has failed to prove.
Q. P.W.-3 in her statement in chief has mentioned the names of Pawan (Son) and Rama Shankar (Samdhi) who accompanied P.W.-3 along with others to the place of occurrence where the injured was lying but they have not been produced in evidence.
R. There is no recovery of blood stained clothes of P.W.-3 Gayatri Misra or other persons who accompanied P.W.-3 to the place where the injured was lying and took him on an Auto-rickshaw for getting him admitted to the hospital.
S. The prosecution has not got recorded the dying declaration of the injured as required in law.
T. P.W. 4 has not recognized P.W.3 Gayatri Misra as such her presence at the place where the inured was lying makes the prosecution case doubtful.
U. The timing of the occurrence has been sought to be disputed by referring to the statement of P.W.-3 and P.W.-5 on the basis of which it is alleged that the entire prosecution case is doubtful.
33. In the light of the aforesaid distinguishing facts Mr. Mangala Prasad Rai, learned counsel for the accused-appellants has made the following submissions in support of the appeal:
A. The case in hand is a case of circumstantial evidence and the prosecution has to prove the complete chain of events to bring home the charge levelled against the accused-appellants, but the prosecution has failed to prove the same.
B. Placing reliance upon the postmortem report it was contended that the nature of the injuries suffered by the injured were such that he could not speak as per the opinion given by the Doctor himself (P.W.-5). Therefore the alleged oral dying declarations alleged to have been made by the deceased are wholly doubtful. In support of the aforesaid reliance was placed on Modi's Medical Jurisprudence regarding the aforesaid.
C. According to the prosecution case, the deceased had gone to Pallavi Hotel to attend the marriage reception of Vikas Pandey along with Mikky Rai. The accused persons had taken the deceased from Pallavi Hotel and thereafter committed the crime. As such Mikky Rai was the best person to prove this fact, i.e., the last seen theory but the prosecution has failed to produce him in evidence.
D. The presence of Gayatri Devi is not proved.
E. The evidence of P.W.-4 is liable to be discarded.
34. Mr. Saghir Ahmad the learned A.G.A. in opposition to the arguments made by the appellants counsel has submitted with vehemence before us that in criminal trial it is not the volume of evidence but the quality of evidence which decides the fate of the prosecution. The prosecution in support of its case has produced P.W.-4 who is a chance witness as well as an independent witness. Such character of P.W.-4 has neither been diluted nor doubted in the court below. Once the character of the witness is not doubtful then the oral evidence given by him will be relied upon on the ground of trustworthiness. In the present case, P.W.-4 is a reliable and credible witness and therefore the testimony given by him is trustworthy. He next submits that even if for arguments sake the oral testimony of P.W.1, P.W.-2, P.W.-3 are discarded yet the oral evidene of P.W.-4 supports the prosecution case. Referring to the oral evidence of P.W.-4, Driver- Constable, Suresh Kumar Dubey he submits that P.W.-4 has denied the presence of Gayatri Devi on account of his ignorance of having acquaintance with her. But the factum regarding the presence of a lady is admitted. Therefore, it is urged that the presence of Gayatri Devi can be disputed but her absence is not established beyond reasonable doubt. Further countering the submissions made by the appellants' counsel it is then contended that the deceased had given two oral dying declarations. In the first oral dying declaration made by the deceased to P.W.-4 which is at page 37 of the paper book the word 'Bhanja' has been uttered by the injured/deceased. However, in the second oral dying declaration made to P.W.-2 Poonam Misra (Daughter of the deceased), the deceased has named the accused persons. As such the accused-appellants have been implicated on the basis of the statement of an injured witness.
35. On the cumulative strength of the aforesaid submissions, it is urged that the accused-appellants are guilty of the charges levelled against them which has been proved beyond doubt. During the course of hearing of the appeal, the entire evidence which has been examined by this Court does not lead to a view which may favour the accused-appellants. As such there is no illegality in the judgement and order of the trial court convicting the accused-appellants of the offence alleged against them. It is therefore urged that the appeal being devoid of merits is also liable to be dismissed.
36. Learned counsel for the appellants commenced his challenge to the conviction awarded by the court below to the accused-appellants by submitting that the present case is based upon circumstantial evidence. Therefore, it is submitted that the circumstances relied upon by the prosecution must form a complete chain and proved. The burden to prove the same is upon the prosecution. However, in the present case the prosecution has failed to prove the same, and therefore, the accused-appellants are liable to be acquitted of the charges levelled against them.
37. The legal position in this regard stands crystallized and we may very conveniently refer to the judgement of the Apex Court in the case of Rohtash Kumar vs State of Haryana, reported in 2013 (14) SCC 434. Paragraphs 6 and 7 of the aforesaid judgement are relevant for the controversy in hand and accordingly, the same are reproduced here under:-
"6. The present case is of circumstantial evidence, as there exists no eye-witness to the occurrence. The primary issue herein involves determination of the requirements for deciding a case of circumstantial evidence.
7. This Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651 has held, "the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis, except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused." (See also: Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; and Paramjeet Singh @ Pammu v. State of Uttarakhand, AIR 2011 SC 200). "
38. Recently the Apex Court has also considered this very issue in the case of State of Himanchal Pradesh Vs. Raj Kumar reported in 2018 (2) SCC 69, wherein the Apex Court has ruled that an inference of guilt can be drawn in a case based on circumstantial evidence. The following was observed by the Apex Court in paragraphs 9 and 10 of the judgement which are extracted here under:-
"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan V. State of Maharashtra (2006) 10 SCC 681, it was held as under:-
"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and frmly established; that those circumstances should be of a defnite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."
39. Thus in the light of caution given by the Apex Court which must be borne in mind while dealing with a case of circumstantial evidence, we proceed to scrutinize the said submission to find out whether the prosecution has been successful in discharging it's burden to establish the complete chain of events and further prove the same. But before we undertake the said exercise, it will be justified to crystallize the circumstances under distinct heads which complete the entire chain of events and are required to be dealt with.
A. The motive behind the occurrence.
B. The deceased leaving his home at around 7:15 pm to attend the marriage reception of Vikas Pandey at Pallavi Hotel, Varanasi.
C. The accused persons coming to Pallavi Hotel and thereafter taking the deceased with him.
D. Assault upon the body of the deceased and thereafter leaving the injured near the railway track on the outer side of the railway station.
E. The arrival of P.W. 4 constable-driver Suresh Kumar Dubey at the place where the injured was lying.
F. The oral dying declaration made by the deceased to P.W.4 and thereafter to P.W.2 Poonam Misra.
G. The arrival of P.W. 3 Gayatri Misra at the place of occurrence, where the injured was lying.
H. The recovery of the injured by P.W. 3 and taking him to hospital.
I. The meeting of P.W.1 first informant with P.W.3 when she was taking the injured to hospital.
J. The injured being admitted to Heritage Hospital where he died on 11.7.2007 at 1:35 am.
40. However, before considering, the veracity of the submission made by the learned counsel for the appellants, it would be appropriate to recapitulate the recognized principles of criminal jurisprudence that the initial burden to prove a case is always upon the prosecution irrespective of the fact as to whether it is a case of direct evidence or circumstantial evidence. The prosecution is under an obligation to first adduce the material on the basis of which the Court can presume the commission of the offence by the accused persons. Once this burden is discharged, the onus of proof shifts upon the accused to explain the circumstances in their statements under section 313 Cr. P. C. on the basis of which, the Courts can draw an adverse inference against the prosecution or to adduce witnesses to contradict the prosecution case. Secondly, in a case, relating to circumstantial evidence, the Court must deal with the motive alleged to be the cause behind the occurrence, as motive is a crucial circumstance in the case belonging to the aforesaid category.
41. It will be worthwhile to note that the defence has not challenged the credibility or the reliability of three prosecution witnesses namely P.W. 1, P.W. 2 and P.W. 3 specifically before us. However, being the court of appeal and the last court of fact, we have ourselves examined the testimony given by the aforesaid witnesses thread bare and we find the same to be trustworthy and therefore worthy of being relied upon.
42. The chain of events right from the meeting of P.W. 4 with the injured, the first oral dying declaration made by the injured to P.W. 4, the phone call made by P.W. 4 from his mobile phone to the land line number of the injured, the disclosure of the assault upon the body of the injured to P.W. 2 Poonam Misra by the injured himself, the information given by P.W. 2 to her mother, brother and father-in-law, followed by the information given to the first informant P.W. 1, the recovery of the injured from the railway track subsequent to the second oral dying declaration made by the injured to P.W. 2, the admission of the injured to the Hospital followed by the lodging of the F.I.R. and ultimately the death of the injured had occurred in one sequence that is from 7.15 p.m. of 10.7.2017 to 1.30 a.m., of 11.7.2017. The entire chain of events had occurred in the same transaction which becomes relevant under section 6 of the Indian Evidence Act. Secondly, the accused Shaloo Pandey and Little Pandey who are the real bhanjas of the deceased and throughout this period, they had remained away from the injured which conduct can be into consideration under section 8 of the Evidence Act particularly when the accused-appellants were running the tenanted shop belonging to the deceased.
43. P.W. 2 in her statement before the Court has clearly stated the reason behind the occurrence which is the motive behind the occurrence. P.W. 2 has further narrated the entire chain of events right from the induction of accused-appellant No. 1 Shaloo Pandey in the tenanted shop and how the difference grew between the deceased and the accused-appellants reaching a point of no return. The eviction of the accused appellant No. 1 Shaloo Pandey sought by the deceased from the tenanted shop which became the motive behind the occurrence. Further the entire chain of events subsequent to the second oral dying declaration made by the deceased to P.W. 2 has clearly been stated in her testimony which remains intact. The evidence given by P.W. 2 also stands corroborated from the statement of P.W. 1 and P.W. 3 whose testimony also confirms the same prosecution story as stated by P.W. 2. The first oral dying declaration made by the injured to P.W. 4 Driver Constable Suresh Kumar Dubey and the subsequent oral dying declaration made to P.W. 2 have been duly proved by P.W. 4 who is not only a chance witness but also an independent witness. The testimony of all the four prosecution witnesses could not be dislodged by the defence either in the cross examination of the aforesaid witnesses or by adducing any such witness by the defence who could contradict the testimony of the aforesaid witnesses. Thus the motive as well as the entire events as enumerated herein above, have been established and for form a complete chain of events which have also been proved by the prosecution beyond a reasonable doubt. These are in themselves complete and fully establish the conclusion that the guilt has been committed by the accused-appellants. The same is of a conclusive nature and excludes all possible hypothesis but proves the one which is required to be proved. The fact established are consistent with the hypothesis of the guilt of the accused. Accordingly, we are of the view that the prosecution has succeeded in proving the motive against the accused persons for committing the crime and also the entire events and circumstances so as to form a complete chain leading to the death of the deceased.
44. Placing reliance upon the postmortem report it was next urged by the learned counsel for the appellants that on account of the nature of the injuries suffered by the injured he could not speak as per the opinion of the Doctor, i.e. PW.-5. Therefore the oral dying declarations made by the deceased are wholly doubtful. In support of the aforesaid reliance was placed upon Modi's Medical Jurisprudence. The submissions so raised is comprised of two parts. The first part relates to the opinion of the Doctor, on the basis of which it is urged that the injured could not have made the oral dying declarations. The second part relates to the admissibility of such oral dying declarations in evidence.
45. With regard to the submissions made by the learned counsel for the appellants that the injured was not in a position to make oral dying declarations, we may observe that the same is purely hypothetical. The opinion of the Doctor cannot form the basis to arrive at a conclusion that the injured could not have made the oral dying declarations made by him to P.W.4 and P.W.2.
46. How the medical evidence and the ocular version have to be weighed in a criminal case, has been carefully dealt with by the Apex Court in the case of Ram Bali Vs. State of U.P. As reported in the 2004 (10) SCC 598. Paragraphs 10 and 11 of the aforesaid judgement deal with the issue referred to above. As such, the same are quoted herein below:-
"10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah V. State of Andhra Pradesh (AIR 1985 SC 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. Vs. The State of Punjab (AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.
11. Factors were also noted by HWV Cox in his book referred to by learned counsel for the appellant. (See Seventh Edition, at pages 300 to 302). An author's view which is opinion based on certain basic assumptions only cannot be a substitute for evidence let in to prove a fact - which invariably depends upon varied facts, and according to the peculiar nature of a particular case on hand. The only inevitable conclusion is that the plea is without any substance, apart from the fact that the said plea pertaining to mere appreciation of facts was not raised before the High Court."
47. With regard to the admissibility of dying declaration in evidence it is by now well settled that dying declaration is admissible in evidence. The principle on which it is admitted as evidence is indicated in the legal maxim ''nemomoriturus prae-sumitur mentire' which means a man will not meet his maker with a lie in his mouth. This is exactly the reason as to why it is now an established proposition that an accused can be convicted solely on the basis of ''Dying Declaration.' In fact, no corroboration is required since corroboration is only a rule of prudence and not a rule of evidence.
48. Section 32 of the Indian Evidence Act, 1872, deals with dying declaration and is extracted below:
"32. Cases in which statement of relevant facts by the person who is dead or cannot be found etc. is relevant:-
Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:
(1) when it relates to cause of death- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.'
49. Dying declaration will be admissible in evidence only when the person making the statement dies and the cause of the person's death comes into question. If the person making a dying declaration survives, such a statement will not come within the purview of Section 32(1) of the Evidence Act. Dying declaration is an exception to the general rule of excluding the hearsay evidence. The burden of proving the dying declaration is always on the prosecution. Since an accused can be convicted solely on the basis of dying declaration, it is always better that the court should carefully scrutinize the same. Three essential ingredients will have to be proved to the satisfaction of the court before a dying declaration becomes admissible in evidence are :- (i) the declarant should have been in actual danger of death at the time when he made the statement; (ii) he should have had full apprehension of his danger and (iii) death should have ensued.
50. The Dying Declaration should inspire the confidence of the court about the truthfulness of such a declaration. If the court, after careful evaluation of the entire evidence, feels that the same was the result of either tutoring, prompting or product of imagination, the Declaration will not be accepted. If the contents of the very Dying Declaration contradicts the core of the prosecution case, the declaration will not be the basis for conviction. Normally, a Dying Declaration should be recorded in the words of the declarant, but the same cannot be rejected merely because the exact words used by the declarant are not reproduced.
51. In the leading case of Pakala Arayaa Swami Vs. Emperor AIR 1939 Privy Council 47, the expression ''circumstances of the transaction which resulted in his death' has been eloquently explained. As per the facts of the said case, the deceased had left his house to go to Behrampur. While leaving his house, he had told his wife that he was going to Pakala Narayana Swamy's house in Behrampur to demand him to pay back the amount given by him. Later on his dead body was found in a trunk and his body had been cut into pieces. The question before the Privy Council was as to whether such a statement made by the deceased to his wife would really come within the purview of Section 32(1) of the Evidence Act. In fact, it was held by the Privy Council that the statement made by the deceased to his wife just prior to leaving his house to go to Behrampur was a statement and one of the circumstances of the transaction which resulted in the death of the man. Therefore the expression ''any of the circumstances of the transaction which resulted in his death' is necessarily wider in its interpretation than the expression ''the cause of his death.'
52. Normally the court looks to the medical opinion about the fit condition of the declarant at the time of making the statement. But this cannot be an inelastic rule. If the person who records the statement or the witness to the declaration tenders satisfactory evidence as to the fit mental condition, the Dying Declaration will be accepted. In the Constitution Bench judgment of the Apex Court in the case of Laxman Vs. State of Maharashtra reported in AIR 2002 SC 2973, it is succinctly explained that medical certification is not a sine qua non for accepting the Dying Declaration. The relevant law enunciated in paragraph 5 of the judgement is reproduced herein below as follows:
''The Court also in the aforesaid case relied upon the decision of this Court in Harjeet Kaur v. State of Punjab, 1999 (6) SCC 545 case wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this court in Paparambaka Rosamma and Others .v. State of Andhra Pradesh 1999 (7) SCC 695 to the effect that ''... in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the inured was in a fit state of mind at the time of making a declaration' has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind where after he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma and Others .v. State of Andhra Pradesh 1999 (7) SCC 695 must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji and another .v. State of Gujarat 1999 (9) SCC 562 case.'
53. Dying Declaration cannot be discarded merely because it did not give precise description of all the weapons used to commit the offence and about the manner in which injuries were caused. Dying declaration cannot be rejected merely because the declarant did not die instantly or immediately and he lingered on for some days. The declarant need not necessarily be in the imminent danger of death.
54. In the case of Khushal Rao Vs. State of Bombay (AIR 1958 SC 22), the Apex Court has held that uncorroborated dying declaration can be the basis for conviction. Following are the principles laid down in paragraph 16 of the said judgment:
(i) that it cannot be laid sown as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated,
(ii) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made,
(iii) 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,
(iv) that a dying declaration stands on the same footing as another piece of evidence has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence,
(v) 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 the oral testimony which may suffer from all the infirmities of human memory and human character, and
(vi) 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, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.'
55. The law as it stood earlier was that the declaration be recorded in the form of question and answer, but in the case of Satishchandra Vs. State of Madhya Pradesh, 2014 (6) SCC 723, it was observed that the declaration cannot be rejected on the solitary ground that it was not recorded in the form of question and answer. The Apex Court further observed that if the declaration is otherwise acceptable and meets the requirement of Section 32(1) of the Evidence Act, it shall be admissible in evidence.
56. Insofar as proof of oral dying declaration is concerned, the court should, as a matter of prudence, look for corroboration in order to know whether such a declaration was truthful. Following broad principles have been laid down by the Hon'ble Apex Court in the case of Atbir V. Government of Nct of Delhi reported in 2010 (9) SCC 1, in paragraph 22 of the judgement:-
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot be the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii)Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.'
57. Though a Dying Declaration is entitled to great weight, one cannot forget that the accused has no power to cross-examine the declarant to elicit the truth. Hence the court should be satisfied about the truthfulness of such a declaration and the same being not tutored in any manner. Section 32(1) of the Evidence Act does not prescribe any statutory guideline in the matter of recording dying declaration, and considering the same while appreciating the evidence. But the Hon'ble apex court, in several leading decisions, while considering the facts of each case, has laid down some broad guidelines and thus they have become binding precedents under Article 141 of the Constitution of India. While evaluating the evidence, especially in criminal cases, the court is expected to keep in mind the novel observation made by the apex court in the case of State of U.P. Vs. Krishnagopal and another, AIR 1988 SC 2154, in the last part of paragraph 13 which is as under:-
''......There is an unmistakable subjective element in the evaluation of the degree of probability and quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and ultimately on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice.'
58. In the case in hand, we find that the oral dying declaration made by the deceased to P.W.4 and thereafter to P.W.2 are worthy of being relied upon. The defence in the cross-examination of the aforesaid two witnesses has not been able to extract any such fact or circumstance so as to doubt the credibility and reliability of the oral dying declarations made by the deceased. It is subsequent to the second oral dying declaration made by the deceased to his daughter P.W. 2 Poonam Misra that the injured was recovered from the railway track where he was lying unattended and bleeding profusely and thereafter admitted to Heritage Hospital which is a private hospital. The absence of the accused-appellants who are the real Bhanjas (nephews-sister's sons) of the deceased right from the recovery of the injured till his death is a fact/circumstance which goes against the accused-appellants and can be taken note of under Section 8 of the Indian Evidence Act. Furthermore, the oral dying declarations made by the deceased stand corroborated from the testimony of P.W.1 and P.W.3. As such, there is no room of doubt in placing reliance upon the same.
59. Another point urged by the learned counsel for the accused-appellants in support of the appeal is the failure on the part of the prosecution to produce Mikky Rai in evidence. According to the learned counsel for the appellants it is the admitted prosecution case that the deceased left his home on 10.7.2007 at 7:15 pm along with Mikky Rai to attend the marriage reception of Vikas Pandey scheduled at Pallavi Hotel. It is the further case of the prosecution that the accused persons came to Pallavi Hotel and took the deceased along with them. On the aforesaid factual premise, it is sought to be urged by the appellants' counsel that the presence of the deceased and the accused-appellants at Pallavi Hotel from where the deceased is alleged to be taken by the accused could be proved by Mikky Rai. Once the prosecution has chosen not to produce Mikky Rai, the last seen theory could not be proved in the present case. Consequently, an important link in the chain of events gets broken and therefore the accused-appellants are liable to be acquitted of the charge alleged against them.
60. We may mention here that the aforesaid submission was also urged before the court below. However, the court below did not accept the same. The reasoning recorded by the court below for rejecting the aforesaid submissions have already been noted in paragraph 20 of the judgement. Accordingly, we do not wish to repeat the same. However, as the aforesaid submission has been raised before us, we accordingly proceed to deal with the same.
61. In the case in hand, the prosecution case is not solely dependent upon the last seen theory. The prosecution has also relied upon the oral dying declaration of the deceased, and the testimony of the three prosecution witnesses to prove its case. It is true that the case is based upon circumstantial evidence as there is no direct evidence of the assault on the body of the deceased. Therefore, the failure to produce Mikki Rai will not automatically result in the termination of the prosecution launched against the accused-appellants. If the oral dying declarations made by the injured to P.W.4 and thereafter to P.W.2 stands proved and the testimony of the three prosecution witnesses corroborate the dying declarations made by the deceased and further proves the chain of events which have occurred upon the information received vide oral dying declaration made by the deceased to P.W. 2 Poonam Misra, the prosecution shall certainly be successful in proving its case.
62. P.W.2 Poonam Misra in her testimony has already stated that her father gave a phone call from a mobile set disclosing the act of the accused persons causing deep and grievous injuries upon his body and thereafter abandoning him near the railway track, on the outskirts of the railway station. It is subsequent to this information that P.W.3 Gayatri Misra wife of the deceased along with her son Pappu Misra and her samdhi Rama Shanker came to the place where the injured was lying and thereafter took him to Heritage Hospital, where ultimately the injured died on 11.7.2007 at 1:35 am.
63. Thus the implication of the accused-appellants in the crime in question is not based on the last seen theory, but on the basis of the oral dying declaration made by the injured himself. This declaration made by the injured gets corroborated from the testimony of P.W.4 in whose presence it was made to P.W.2. Poonam Misra. Upon having the oral account of the occurrence from the injured (her father) P.W.2 Poonam Misra informed her mother P.W.3 Gayatri Misra who immediately proceeded to recover the injured and the first informant who after the injured was admitted to heritage hospital lodged the F.I.R. The entire gamut of facts as stated above forms part of a single transaction and therefore, relevant under Section 6 of the Evidence Act. The defence has miserably failed to dislodge the prosecution story which has remained consistent in the oral testimony of P.W.-1 , P.W.-2 and P.W.3.
64. We may however refer to the judgement of the Apex Court in the case of Rohtash Kumar vs State of Haryana, reported in 2013 (14) SCC 434, wherein this very issue regarding the failure of the prosecution to adduce a particular witness has been considered in detail. Paragraphs 8 to 17 of the aforesaid judgement are relevant which are reproduced herein under-
"8. A common issue that may arise in such cases where some of the witnesses have not been examined, though the same may be material witnesses is, whether the prosecution is bound to examine all the listed/cited witnesses.
This Court, in Abdul Gani & Ors. v. State of Madhya Pradehs, AIR 1954 SC 31, has examined the aforesaid issue and held, that as a general rule, all witnesses must be called upon to testify in the course of the hearing of the prosecution, but that there is no obligation compelling the public prosecutor to call upon all the witnesses available who can depose regarding the facts that the prosecution desires to prove. Ultimately, it is a matter left to the discretion of the public prosecutor, and though a court ought to and no doubt would, take into consideration the absence of witnesses whose testimony would reasonably be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly, taking into consideration the persuasiveness of the testimony given in the light of such criticism, as may be levelled at the absence of possible material witnesses.
9. In Sardul Singh v. State of Bombay, AIR 1957 SC 747, a similar view has been reiterated, observing that a court cannot, normally compel the prosecution to examine a witness which the prosecution does not choose to examine, and that the duty of a fair prosecutor extends only to the extent of examination of such witnesses, who are necessary for the purpose of disclosing the story of the prosecution with all its essentials.
10. In Masalti v. State of U.P., AIR 1965 SC 202, this Court held that it would be unsound to lay down as a general rule, that every witness must be examined, even though, the evidence provided by such witness may not be very material, or even if it is a known fact that the said witness has either been won over or terrorised. "In such cases, it is always open to the defence to examine such witnesses as their own witnesses, and the court itself may also call upon such a witness in the interests of justice under Section 540 Cr.P.C.". (See also: Bir Singh & Ors v. State of U.P., (1977) 4 SCC 420)
11. In Darya Singh & Ors. v. State of Punjab, AIR 1965 SC 328, this Court reiterated a similar view and held that if the eye-witness(s) is deliberately kept back, the Court may draw inference against the prosecution and may, in a proper case, regard the failure of the prosecutor to examine the said witnesses as constituting a serious infirmity in the proof of the prosecution case.
12. In Reghubir Singh v. State of U.P., AIR 1971 SC 2156, this Court held as under:
"...Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. The appellant's counsel has not shown how the prosecution story is rendered less trustworthy as a result of the non-production of the witnesses mentioned by him. No material and important witness was deliberately kept back by the prosecution. Incidentally we may point out that the accused too have not considered it proper to produce those persons as witnesses for controverting the prosecution version....." (Emphasis added)
13. In Harpal Singh v. Devinder Singh & Anr., AIR 1997 SC 2914, this Court reiterated a similar view and further observed:
"....The illustration (g) in Section 114 of the Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness....."
14. In Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, this Court held:
"10. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration. (g) to Section 114 of the Evidence Act.... In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
15. In Banti @ Guddu v. State of M.P., AIR 2004 SC 261, this Court held:
"In trials before a Court of Session the prosecution "shall be conducted by a Public Prosecutor". Section 226 of the Code of Criminal Procedure, 1973 enjoins on him to open up his case by describing the charge brought against the accused. He has to state what evidence he proposes to adduce for proving the guilt of the accused. ......If that version is not in support of the prosecution case it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution.
When the case reaches the stage envisages in Section 231 of the Code the Sessions Judge is obliged "to take all such evidence as may be produced in support of the prosecution". It is clear form the said section that the Public Prosecutor is expected to produce evidence "in support of the prosecution" and not in derogation of the prosecution case. At the said stage the Public Prosecutor would be in a position to take a decision as to which among the presence cited are to be examined. If there are too many witnesses on the same point the Public Prosecutor is at liberty to choose two or some among them alone so that the time of the Court can be saved from repetitious depositions on the same factual aspects. ......This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but also help the Court considerably in lessening the workload. Time has come to make every effort possible to lessen the workload, particularly those courts crammed with cases, but without impairing the cause of justice. ......It is open to the defence to cite him and examine him as a defence witness........"
16. The said issue was also considered by this Court in R. Shaji (supra), and the Court, after placing reliance upon its judgments in Vadivelu Thevar v. State of Madras; AIR 1957 SC 614; and Kishan Chand v. State of Haryana, JT 2013( 1) SC 222), held as under: .
"22. In the matter of appreciation of evidence of witnesses, it is not the number of witnesses, but the quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time- honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system has laid emphasis on the value provided by each witness, as opposed to the multiplicity or plurality of witnesses. It is thus, the quality and not quantity, which determines the adequacy of evidence, as has been provided by Section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced over and above this, does not carry any weight."
17. Thus, the prosecution is not bound to examine all the cited witnesses, and it can drop witnesses to avoid multiplicity or plurality of witnesses. The accused can also examine the cited, but not examined witnesses, if he so desires, in his defence. It is the discretion of the prosecutor to tender the witnesses to prove the case of the prosecution and "the court will not interfere with the exercise of that discretion unless, perhaps, it can be shown that the prosecution has been influenced by some oblique motive." In an extra- ordinary situation, if the court comes to the conclusion that a material witness has been withheld, it can draw an adverse inference against the prosecution, as has been provided under Section 114 of the Evidence Act. Undoubtedly, the public prosecutor must not take the liberty to "pick and choose" his witnesses, as he must be fair to the court, and therefore, to the truth. In a given case, the Court can always examine a witness as a court witness, if it is so warranted in the interests of justice. In fact, the evidence of the witnesses, must be tested on the touchstone of reliability, credibility and trustworthiness. If the court finds the same to be untruthful, there is no legal bar for it to discard the same. "
Thus in the light of the aforesaid ratio, the submission made by the learned counsel for the appellants regarding the failure on the part of the prosecution to adduce Mikky Rai is not such an infirmity that it can make a dent in the prosecution case.
65. In continuation of his challenge to the conviction awarded by the court below, learned counsel for the accused-appellants submitted that the prosecution has failed to prove the very story it set up to prove. In this regard with great emphasis it was urged that the presence of P.W.3 Gayatri Misra at the place where the injured was lying and P.W.-4 met the injured has not been proved beyond doubt, which in turn creates a serious dent in the prosecution case. In this regard, attention of the Court was invited to the testimony of P.W. 3, Gayatri Misra with special reference to the following part of her testimony occurring at page 41 and 42 of the paper book.
"eSaus vius ifr dks ?kk;y voLFkk eas ns[kk FkkA ml le; muds flj ls [kwu cg jgk FkkA eSa va/ksjs ds dkj.k muds vU; pksVksa dks ugh ns[k ik;h FkhA fQj eSaus muds 'kjhj ij vkbZ pksVksa dks jkLrs esa vLirky rd ugh ns[kkA ftl VsEiw ls ge yksx ?kj ls x;s Fks mlh VsEiw ls vius ifr dks ysdj vLirky xbZ FkhA feDdh jk; o jktujk;u esjs lkFk vLirky ugh x;s Fks] dsoy eSa esjk yM+dk o esjs le/kh vLirky x;s FksA^^
66. To give impetus to his argument, the appellants' counsel drew the attention of the court to the statement of P.W. 4 driver constable Suresh Kumar Dubey to contend that P.W.4 in his testimony has refused to identify Gayatri Misra, which clearly disputes the case of the prosecution that upon the receipt of the phone call P.W.-3 Gayatri Misra proceeded to recover the injured. The following portion of the testimony of P.W.4 which is at page 54 and 55 of the paper book was relied upon to derive support regarding the aforesaid.
"?kVuk LFky ij tc rd eSa jgk blh chp e`rd ds ?kj ls ,d yM+dk] vkSjr vkSj yksx Hkh vk;s FksA vkSjr o yM+ds ds jksus ds vk/kkj ij eSaus tkuk fd ;g muds ifjtu gSA buds lkFk vkSj fdrus yksx Fks eSa ugh crk ldrkA ;g yksx jksMost dh rjQ ls vk;s FksA ifjtuksa ds vkus ds ckn ?kk;y dks ys tkus ds ckn eSa pyk x;kA e`rd ifjtu mudks ?kk;y voLFkk esa fdl lk/ku ls ys x;s eq>s tkudkjh ugh gSA ,slk ugh gS fd og esjs lkFk lkFk fudys cfYd og dgkW x;s bldh tkudkjh eq>s ugh gSA eSaus ?kk;y O;fDr ds ifjtuksa ls mudk uke irk ugh iwNkA muds ifjtuksa us mudks mBk;k vkSj ysdj pys x;sA eSa mudks mBkus cSBkus es dksbZ enn ugh fd;kA muds ifjtuksa ls esjh dksbZ okrkZ ugh gqbZ vkSj dksbZ dSfQ;r ugh tkukA"
67. Having referred the relevant portion of the testimony of the aforesaid two witnesses i.e. P.W.3 and P.W. 5, learned counsel for the appellants drew a parallel to contend that in view of the conflicting evidence of the aforesaid two witnesses regarding the presence of Gayatri Misra at the place where the injured was lying is not proved beyond doubt. Thus the prosecution has failed to prove the complete chain of events which it was required to prove. Consequently, the prosecution has not been able to establish and prove the very story it set out to prove. Since there is doubt in the prosecution case on that score, the benefit of doubt must extend to the accused-appellants. Accordingly, the accused-appellants are liable to be acquitted of the charges levelled against them.
68. We may at this stage point out that a witness cannot be contradicted by reference to the statement of another witness. Section 145 of the Indian Evidence Act read with Section 155 clearly provides that a witness can be contradicted only by making reference to his own previous statement or the part of the same statement. The aforesaid proposition has been examined by the Apex Court in the case of Mohan Lal Ganga Ram Gehani Vs. State of Maharashtra, reported in 1982 (1) SCC 700 which has been followed in the case of Chaudhri Ramjibhai Narsanghbhai Vs. State of Gujarat and Others, reported in 2004 (1) SCC 184. Paragraph 11 of the aforesaid judgement is relevant for the issue in hand. Accordingly, the same is reproduced herein below:-
"11.Coming to the plea that the contradictions noticed by the trial Court were ocular vis-a-vis the medical evidence, we find on reading of the judgment it is not to be so, Section 145 of the Indian Evidence Act, 1872 (in short the " Evidence Act") applies when same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-a-vis statement of other witnesses. It is not open to Court to completely demolish evidence of one witness by referring to the evidence of other witnesses. Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839. As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness." ......
69. A deeper scrutiny of the oral testimony of the two witnesses i.e. P.W.3 and P.W.4 will go to show that the P.W.4 could not recognize Gayatri Misra. Admittedly P.W.-4 in his testimony has clearly stated that he is not acquainted to Gayatri Misra. However, in that part of his evidence he admits the arrival of a lady along with the party which came to recover the injured from the railway track. The defence in the cross-examination of P.W.4 or even P.W.3 has not specifically cross-examined these two witnesses to establish who that lady was. From the chain of events which happened subsequent to the phone call given by the injured from the mobile phone of P.W.-4, the presence of P.W.3 is established beyond doubt. The statement of P.W.-3 gets corroborated from the statement of P.W.1 and P.W.2. Therefore, the submission made by the appellants' counsel on that score does not have any legs to stand.
70. Another submission urged by the learned counsel for the accused-appellants in challenge to the prosecution case is regarding the credibility and reliability of P.W.-4, Constable-Driver, Suresh Kumar Dubey. Elaborating his arguments, the appellants' counsel submits that P.W.-4 is neither a reliable nor a credible witness. As such the testimony given by him is unworthy of being relied upon. P.W.-4 is a chance witness and his presence at the place where the injured Ganga Saran Misra was lying has not been proved to be beyond doubt. The reason assigned by P.W.-4 in his examination in chief regarding his presence at the place where the injured was lying by chance may be fanciful but does not inspire such confidence that he could be relied upon. In short, it was sought to be urged that the evidence is too good to be relied upon. Another limb to the aforesaid argument that was also urged with equal vehemence is that the condition of the injured was not such on account of the injuries sustained by him that he could speak. Attention in this regard was drawn to the postmortem report to point out the deep and grievous injuries found on the body of the deceased to buttress the aforesaid submission. Lastly, it was submitted that the conduct of P.W.-4 is unnatural which again creates a doubt regarding the credibility and reliability of this witness. Consequently, no reliance upon his testimony could be made. According to the appellants' counsel when P.W.-4 saw the injured near the railway track his natural response should have been to first inform the GRP at the Railway Station and thereafter, immediately rushed the injured to a Hospital for getting him medical aid immediately. To the contrary, P.W.-4 is alleged to have entered into a conversation with the injured and then gave a call from his Mobile Phone No. 9450377754 at the Land-line Telephone no. 0542-2420191. To enable the injured to disclose the entire episode at his home. On these facts, it is sought to be urged that the inaction on the part of P.W.-4 as stated above makes this witness unworthy of reliance. The court below therefore erred in convicting the accused-appellants by placing reliance upon the testimony of the aforesaid witness. Consequently, the testimony of this witness deserves to be discarded by this Court.
71. Countering the aforesaid submissions urged by the learned counsel for the appellants Mr. Saghir Ahmad the learned A.G.A. contends that P.W.-4 is a chance witness and also an independent witness. Therefore, his testimony is worthy of being relied upon. There is nothing on the record to infer that P.W.-4 is not a credible or reliable witness and his testimony is not trustworthy. How and why P.W.-4 reached the place where the injured was lying has been clearly stated in his testimony itself. P.W.-4 in no unambiguous words has stated his place of posting and why he was at the Railway Station and why he took the desolated path along the railway track where the injured was lying. The defence has not filed any documentary evidence to dislodge the testimony of P.W.-4 nor adduced any such witness to contradict the testimony of P.W.-4 regarding his taking leave and going back to join his duty at District-Sonbhadra. No such fact could be culled out from the cross-examination of this witness which could dislodge the facts stated by him regarding the shortcut taken by P.W.-4 for quickly reaching the bus stand. As the defence has miserably failed in dislodging the testimony of P.W.-4 in his cross-examination the natural outcome is that the testimony of P.W.-4 remains intact. Thus, P.W.-4 is a credible and reliable witness and his testimony is worthy of being relied upon.
72. We have considered the rival submissions. Since the fate of the prosecution is primarily dependent upon the evidence given by P.W.-4, the same assumes extra importance and relevance in the case. Accordingly, we ourselves proceeded with circumspection to examine the entire oral testimony of P.W.-4 as well as the testimony of the three prosecution witnesses to find out whether there is anything to doubt the prosecution witnesses.
73. Upon careful scrutiny of the evidence on the record, we find that P.W.-4 is not a related witness as there is no evidence to suggest that P.W.-4 is related to the deceased or any other family members of the deceased. Therefore, P.W.-4 is not a related witness but an independent witness. His presence at the place where the injured was lying bleeding in plain and agony is by chance. How P.W.-4 came to meet the injured is fully explained in his testimony itself. As such his meeting with the injured is by chance and therefore, P.W.-4 is a chance witness. The same is clearly discernible from the testimony of P.W.-4 itself.
74. As such, there is nothing on the record to doubt the credibility/reliability of this witness or the trustworthiness of the testimony given by him. Regarding the conduct of P.W.-4 in not informing the GRP at the Railway Station first and thereafter, immediately taking the injured to the Hospital can be deprecated in hindsight. However, what was required to be done at the spur of the moment is a decision based upon the own judgement of P.W.-4, the correctness of which cannot be doubted on the basis of assumption. As already stated above, it is always possible to judge things in a different way in the hindsight. But that by itself is not a ground to doubt the credibility and reliability of this witness. Therefore, the submissions so made do not make a dent in the judgement and order passed by the court below illegal or otherwise unsustainable.
75. At this stage, it will be useful to reproduce the following observations made by the Apex Court in paragraphs 11, 12 and 13 of the judgement in the case of Gangabhavani (Supra):-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
12. In State of Rajasthan v. Smt. Kalki and Anr. AIR 1981 SC 1390, this Court held:
5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents.
13. In Sachchey Lal Tiwari v. State of U.P. AIR 2004 SC 5039, while dealing with the case this Court held:
7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence.
14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
76. In view of the discussions made above it is apparent that the defence has not been able to create any dent in the prosecution case nor point out any such fact or circumstance so as to doubt much less a reasonable doubt regarding the truthfulness of the prosecution case. The prosecution has succeeded in proving the very story it set out to prove. The testimony of the four prosecution witnesses remains intact even after going through the acid test of cross-examination by the defence. The prosecution witnesses are thus credible and reliable and therefore their testimony is also trustworthy. In view of the aforesaid the chain of events leading to the occurrence is not only complete but duly proved which was required to be completed and proved by the prosecution. The prosecution has accordingly discharged the burden which it was required to discharge. The oral dying declarations made by the deceased to P.W.-4 Driver-Constable Suresh Kumar Dubey and P.W.-2 Poonam Misra get proved by the oral testimony of the aforesaid two witnesses and further stand corroborated by the testimony of P.W.-1 and P.W.-3. It is only after the deceased gave the second dying declaration to his daughter P.W.-2 Poonam Misra that the family members of the deceased came to know of the critical condition of the injured and the place he was lying unattended. It is subsequent to the aforesaid that the family members of the deceased proceeded to recover the deceased and got him admitted in Heritage Hospital, Varanasi. All this time the presence of the accused-appellant no. 1 even when he was running the tenanted shop of the deceased is conspicuous by his absence. The aforesaid facts are relevant facts being part of the same transaction and therefore, can be taken judicial notice of under Section 6 and 8 of the Indian Evidence Act. The prosecution has duly discharged its burden to prove the hypothesis relied upon by it in a manner that except for the hypothesis relied upon by the prosecution no other hypothesis is possible which in turn clearly proves the guilt of the accused-appellants. The defence has miserably failed to prove bring on record any such fact, circumstance or evidence which may create a doubt much less a reasonable doubt in the prosecution case.
77. The appellants have thus failed to make out any such ground warranting interference with the judgement and order under appeal. Consequently, the appeal fails and is therefore liable to be dismissed. It is accordingly dismissed. The judgement and order dated 08.02.2010 passed by the Additional Sessions Judge, Court no. 8, Varanasi in S.T. No. 384 of 2007 (State Vs. Shaloo @ Manjeet Pandey and another) is confirmed. The appellants are in jail. They shall serve out the sentence already awarded to them by the court below.
Order Date :- 23.3.2018 YK