Rajasthan High Court - Jaipur
Kanhaiya Lal vs State Of Rajasthan on 20 February, 2004
Equivalent citations: RLW2004(3)RAJ1937, 2004(3)WLC100
JUDGMENT F.C. Bansal, J.
1. This appeal is directed against the judgment dated September 27, 2000 passed by learned Additional Sessions Judge No. 1, Bundi whereby appellant Kanhaiya Lal has been convicted under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
2. Briefly stated the facts of the prosecution case are that on 11.02.93 at 2.30 a.m. 'Parcha-Bayan' Ex.P20 of deceased Hariom was recorded by PW21 Udailal, A.S.I., P.S. Lakheri wherein it was stated by Hariom that on the same night he was sleeping on a cot in a thatched room of his house. In the adjoining room his brother and his mother were sleeping. There was light in the house. At about 1.30 a.m. Kanhaiya Lal Khateek entered into his house and inflicted injury with 'Chhura' on his chest. He caught hold of Kanhaiya Lal and raised an alarm whereupon his brother Ghanshyam, his sister-in-law (Bhabhi) and his mother came there. Thereafter Kanhaiya Lal fled away. He was brought to the hospital by Hariom Panchal, Radhey Shyam Panchal, Durga Prasad Sharma and Ghanshyam and they got him admitted for treatment. It was alleged in Ex.P20 that on account of previous enmity and with the intention to kill, Kanhaiya Lal had caused injury to him. On the basis of 'Parcha-Bayan' Ex.P20, a case under Section 458 1PC was registered by the SHO, Lakheri. Formal FIR is Ex.P23. The Investigating Officer reached on the spot and prepared Site Plan Ex.P2. Blood was seized vide Seizure Memo Ex.P3 from the spot. The dying declaration Ex.P9 of the deceased was recorded by PW5 Arif Mohd. Madani, Judicial Magistrate, Lakheri at the same night at 3.18 a.m. Hariom expired on 11.2.93. Post-mortem examination was conducted by the Medical Board consisting of PW14 Dr. Rakesh Sharma and Dr. G.S. Vishnar, both Medical Jurist, M.B.S. Hospital, Kota. He (Dr. Rakesh Sharma) prepared Post-mortem Report Ex.P17. Before death Hariom was also medically examined by PW18 Dr. Mangilal Meena, Medical Officer, C.H.C., Lakheri and he prepared Injury Report Ex.P18. Smt. Ramnathi, who is mother of the deceased was also medically examined on 11.2.93 at 10.30 a.m. by the same Medical Officer and he prepared Injury Report Ex.P19. On the death of Hariom, the investigation proceeded further for the offence under Section 302 IPC. 'Panchnama' Ex.P10 of the dead body was prepared by the Investigating Officer. Statements of the witnesses were recorded under Section 161 Cr.P.C. 'Baniyan' which the deceased was wearing at the time of the incident, was seized and sealed by the I.O. vide Seizure Memo Ex.P21. On completion of the investigation charge-sheet was filed against co-accused Gajendra Kumar. As the appellant was absconding, charge-sheet was filed against him under Section 299 Cr.P.C. in the Court of Judicial Magistrate, Lakheri who committed the case to the Court of learned Sessions Judge, Bundi. In due course the file was received by learned Additional Sessions Judge, Bundi for trial. Learned Additional Sessions Judge framed charges under Section 302/34 and 302/120B IPC against Gajendra Kumar who pleaded not guilty and claimed trial. During trial he died and, therefore, proceedings against him were dropped. Appellant Kanhaiya Lal was arrested on 26.12.96 and on his disclosure statement and at his instance, 'Chhura' was recovered from the house of Anandi Lal vide Seizure Memo Ex.P13. Thereafter supplementary charge-sheet was filed against the appellant in the Court of Judicial Magistrate, Lakheri who committed the case to the Court of learned Sessions Judge, Bundi who transferred it to the Court of learned Additional Sessions Judge No. 1, Bundi.
3. Learned Additional Sessions Judge framed charge under Section 302 IPC against the appellant who pleaded not guilty and claimed to be tried. To prove this charge, the prosecution examined as many as 25 witnesses. In his statement recorded under Section 313 Cr.P.C. the appellant pleaded innocence and false implication. However no evidence in defence was adduced.
4. Learned Additional Sessions Judge on hearing the final submissions, convicted and sentenced the appellant as indicated here-in-above.
5. We have heard learned counsel for the appellant, learned Public Prosecutor and have also scanned and scrutinized the material on record.
6. It is not in dispute that deceased Hariom met with the homicidal death. PW18 Dr. Mangilal Meena deposed that on 11.2.93 at 2.45 a.m. as Medical Officer Incharge, C.H.C., Lakheri, he examined Hariom S/o Bajrang Lal, aged 28 years, by caste-Gujar, R/o Nayapura, Lakheri and found the following injury on his person:-
(1) Stab wound 8 x 3 x cavity deep on the chest, 1" below right nipple.
Dr. Meena also stated that this injury was caused by sharp weapon and the duration of the injury was within two hours. He prepared Injury Report Ex.P18. He further stated that in view of serious condition of Hariom, he referred him to M.B.S. Hospital, Kota for treatment.
7. PW14 Dr. Rakesh Sharma stated that on 11.2.93 he was posted as Medical Jurist, M.B.S. Hospital, Kota. On that day at 3.45 p.m. post-mortem examination on the dead body of Hariom was conducted by Medical Board of which he was one of the members. The following injuries were found on the dead body:-
EXTERNAL INJURIES (1) Post operation stitched wound vertically oblique 11" long extending just below right nipple upto right flank of abdomen.
(2) Drainage tube wound 1" oval right thoracic region lateral aspect.
(3) Drainage tube wound 1" oval right abdominal region laterally.
INTERNAL INJURIES (1) 6th and 7th rib of right side were cut.
(2) Peritoneum was found repaired.
(3) 6" stitched wound on superior surface of liver.
(4) Right kidney was absent.
8. Dr. Sharma further stated that the cause of the death was shock due to ante-mortem injury to liver, diaphragm and right kidney. The injury was sufficient in the ordinary course of nature to cause death. Post-mortem Report Ex.P17 was prepared. It was also stated by him in his cross-examination that the injury was caused by sharp weapon.
9. From the testimony of Dr. Rakesh Sharma and Dr. Mangilal Meena, it has been established by the prosecution beyond reasonable doubt that the cause of the death of Hariom was stab wound on his chest which was inflicted by sharp weapon. Therefore, homicidal death of deceased Hariom stands proved.
10. The prosecution case rests upon the ocular testimony of PW11 Kasturi Bai, PW15 Ghanshyam and PW16 Ramnathi Bai who are sister-in-law (Bhabhi), brother and mother of the deceased respectively and the dying declarations Ex.P9 and Ex.P20. Having relied upon the testimony of the aforesaid witnesses and the dying declarations learned Additional Sessions Judge came to the conclusion that the prosecution has succeeded in proving its case and the appellant committed an offence under Section 302 IPC.
11. Now we come to the ocular testimony of the prosecution. PW16 Ramnathi Bai who is mother of the deceased, is a blind lady and, therefore, she could not see the assailant. She stated that on receiving injury it was stated by Hariom that Kanhaiya had caused injury to him but such statement was not given by her when she was examined by the Investigating Officer Under Section 161 Cr.P.C., therefore, no reliance can be placed on the aforesaid statement of Ramnathi Bai. As regards the testimony of Kasturi Bai and her husband Ghanshyam, Kasturi Bai stated that on the night of the alleged incident she and her husband were sleeping in a room. Her brother-in-law (Devar) was sleeping on a cot in a 'Chhappar'. Her mother-in-law was also sleeping in a room. On hearing her mother- in-law's alarm, she alongwith her husband went to the 'Chowk' where she found Kanhaiya Lal armed with a 'Chhura'. Kanhaiya Lal was making attempts to get himself free from the clutches of Hariom. Meanwhile Kanhaiya Lal gave a knife blow on the abdomen of Hariom. Hariom fell down and Kanhaiya Lal fled away. As per the version of Kasturi Bai, Hariom was caused injury by the appellant in the 'Chowk' of the house but PW15 Ghanshyam stated that on hearing his mother's outcry, he alongwith his wife went to the 'Chhappar' where Hariom was sleeping. He found that blood was oozing from the injury on the chest of Hariom which was caused by Kanhaiya Lal. Hariom was catching hold of both the hands of Kanhaiya Lal whereupon he asked his wife to go to Mahesh and bring him. Hariom fell down on the cot. Thereafter appellant Kanhaiya Lal fled away.
12. We have scanned the testimony of Ghanshyam and his wife Kasturi Bai. As per the version of Kasturi Bai, Hariom was caused injury by the appellant in the 'Chowk' whereas Ghanshyam stated that the appellant had inflicted injury on the person of Hariom in the 'Chhappar' of his house. Apart from this material contradiction, as per the version of Ramnathi Bai, before Ghanshyam and his wife reached the spot, the appellant had already fled away. Both Ghanshyam and Kasturi Bai being brother and sister-in-law (Bhabhi) of the deceased, are interested witnesses and PW1 Balkishan and PW10 Mahesh Kumar Gochar who had also reached on the spot after the incident, did not corroborate their testimony. It was categorically stated by PW1 Balkishan that Ghanshyam and his wife did not tell him as to who had caused injury on the person of Hariom. PW10 Mahesh Kumar Gochar did not depose that when he reached at the house of the deceased, Ghanshyam and his wife informed him that appellant Kanhaiya Lal had caused injury to Hariom. In view of the aforesaid facts, we are of the considered view that Ghanshyam and his wife did not see the assailant who had inflicted injury on the person of Hariom and before they reached the spot, the assailant had fled away. Thus, we have come to the conclusion that ocular testimony of the prosecution is not credible and no reliance can be placed on it to hold the appellant guilty for the murder of Hariom.
13. As regards the dying declarations of deceased Hariom, we have noticed the following infirmities:-
(i) Dying Declaration (Parcha-Bayan) Ex.P20 was recorded by PW21 Udailal, ASI, P.S. Lakheri at 2.30 a.m. on 11.2.93. It was not stated by Udailal in his deposition that before recording the dying declaration he had obtained a medical certificate to the effect that Hariom was in a fit state of mind to make his statement. Dying declaration Ex.P9 was recorded by PW5 Mr. Aril Mohd. Madani, Additional Chief Judicial Magistrate (Rly.), Kota. Mr. Madani deposed that before recording the statement of the deceased Hariom, he had got a medical certificate from the doctor on duty. In the opinion of the doctor, Hariom was in a condition to make his statement. The certificate issued by the doctor is 'A to B' on Ex.P8. But PW18 Dr. Mangilal Meena who was posted as Medical Officer in C.H.C., Lakheri at the relevant time, did not depose that the said certificate was issued by him. No other doctor was examined by the prosecution to prove that the said certificate was issued by him. The incident took place at around 1.30 a.m. on 11.2.93. Hariom was caused stab wound 8cm. x 3cm. x muscle and cavity deep on the chest, 1" below right nipple causing cut injury on 6th rib, 7th rib, peritoneum and liver. Because of the said injury Hariom died within a few hours of the incident. It was not deposed by Mr. Madani and Udailal that when dying declaration was recorded they were satisfied that Hariom was in a fit state of mind to make his statement. In these circumstances, we are of the considered view that the prosecution has failed to prove that deceased Hariom was in a fit state of mind at the time of making dying declarations Ex.P9 and Ex.P20.
(ii) As per both the dying declarations, Hariom was caused injury when he was sleeping on a cot in the 'Chhappar' but as per the statement of PW11 Kasturi Bai, the assailant inflicted injury in the 'Chowk' of their house. That apart, no blood was found either on the cot or in the 'Chhappar' but it was found in the 'Chowk' as per Site Plan Ex.P2. In view of these facts, dying declarations Ex.P9 and Ex.P20 appear to be suspicious.
(iii) It was also stated by PW21 Udailal that when dying declaration Ex.P20 was recorded, the brother and other family members of the deceased were present by the side of the deceased. Dying declaration Ex.P9 was recorded after recording of Ex.P20. Hariom was brought to the hospital by his brother Ghanshyam. Therefore, in our view, both the dying declarations are the result of tutoring of the deceased by his family members.
(iv) As per the prosecution version, just after the incident PW1 Balkishan and PW10 Mahesh Kumar Gochar reached on the spot but it was not stated by them in their deposition that when they came at the place of occurrence, deceased Hariom told them that appellant Kanhaiya Lal had caused injury to him. This fact proves that both the dying declarations are not true.
(v) The incident took place at the night at around 1.30 a.m. in the 'Chhappar'. As per Site Plan Ex.P2 there was no electric bulb, lamp or candle in the 'Chhappar' in which the assailant could be identified by the deceased or other family members. Therefore, it is possible that the deceased might have made a mistake about the identity of the assailant.
14. In P.V. Radhakrishana v. State of Karnataka, (2003) 6 SCC 443, the Apex Court has observed that where a dying declaration is suspicious, it should not be acted upon without corroborative evidence: A dying declaration which suffers from infirmity cannot form the basis of conviction. The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
15. Keeping in view the aforesaid observations of the Apex Court, we have scrutinized the dying declarations Ex.P9 and Ex.P20. In view of the aforesaid infirmities, no reliance can be placed upon these dying declarations.
16. The prosecution case suffers from the other infirmity also. It was deposed by PW24 Bhanwar Lal Sharma, SHO, P.S. Lakheri that a verbal report was lodged by Mahesh Gochar at the police station to the effect that Kanhaiya Lal had inflicted an injury with 'Chhura' on the person of Hariom. This verbal report was written in the 'Roznamcha' (Daily Diary) of the police station but the case was not registered on the verbal report made by Mahesh Gochar but it was registered on 'Parcha-Bayan' Ex.P20 of the deceased. In our view, the said verbal report was the F.I.R. which was not produced by the prosecution in the Court during trial and it was withheld. Looking to this fact also, we are of the view that the prosecution has failed to prove its case beyond reasonable shadow of doubt.
17. For these reasons, we allow the appeal and set aside the impugned judgment dated September 27, 2000 rendered by learned Additional Sessions Judge No. 1, Bundi. We acquit the appellant Kanhaiyalal of the charge under Section 302 of the Indian Penal Code. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detailed in any other case.