Madhya Pradesh High Court
Dayashanker vs The State Of Madhya Pradesh on 14 February, 2019
1
HIGH COURT OF MADHYA PRADESH: JABALPUR
Case No. Cr.A. No. 613/2010
Parties Name Dayashankar and others
Vs.
The State of Madhya Pradesh
Date of Judgment 14/02/2019
Bench Constituted Division Bench
Judgment delivered by Justice Sujoy Paul & Justice C. V.
Sirpurkar J.J.
Whether approved for No.
reporting
Name of counsels for parties For the Appellants: Mr. S.C.Datt,
Senior Advocate with Shri Chetan Jaggi,
Advocate
For the respondents/State: Mr.
Shashank Upadhyay, Government
Advocate
Law laid down -
Significant paragraph -
numbers
JUDGEMENT
(14.02.2019) Per: Sujoy Paul, J.
This criminal appeal filed under section 374(2) of the Criminal Procedure Code (Cr.P.C) assails the judgment of conviction and sentence dated 29.3.2010 passed in S.T. No. 134/09, whereby appellants are held guilty under section 302/34 IPC and directed to undergo R.I for life with fine of Rs.1,000/- each with default stipulation.
2. The case of prosecution is that on 25.5.2009 at around 1 O' Clock at village Sadrai, near a public water tap, the accused persons filthily abused complainant Radhelal and; thereafter, the appellants, in furtherance of their common intention, caused death of Radhelal by assaulting him by an Axe, and hockey stick etc.
3. Shri S.C.Datt, learned Senior counsel urged that as per prosecution 2 story, Radhelal was taking bath at the public tap installed on the land of Jagdish Lodhi. Jagdish Lodhi came overthere and asked Radhelal as to why he was putting up soil on the filter of the tap, whereon Radhelal replied that he did it because he was preparing a "Chouka". Upon hearing his reply, Jagdish started abusing and Shalikram, Dayashankar, Jhabbu alias Mukesh also came over there and threatened to kill him. Thereafter, appellants took Radhelal to the courtyard of Jagdish with an intention to kill him. Shalikram gave an axe blow on his back as a result of which blood came out and he fell down. Jagdish assaulted Radhelal with axe, the blow fell on right side of back. Radhelal shouted because of which his wife Munni Bai (P.W.3) and his son Satish (P.W.2) and Sunil (P.W.5) reached the spot. They intervened and made an effort to save Radhelal. Radhelal, in injured condition, reached the police station Deori, where F.I.R (Ex.P/26) was lodged by A.S.I Chandrashekhar Parashar (P.W.2).
4. It is stated that Radhelal was sent for medical examination to Govt. Hospital Deori, where Dr. Kamlesh Silawat recorded his dying declaration (Ex.P/9) and referred him to Hamidiya hospital, Bhopal. On way to Hamidiya hospital, Radhelal died near 11th mile and information of death was given to police station Deori. This marg intimation is Ex.P/1. Thereafter, offences vide Crime No.56/09 under section 302, 294, 506/34 of IPC were registered against appellants and they were arrested.
5. After completion of investigation, charge sheet was filed and case was committed to the Court of Sessions. The appellants abjured their guilt and; therefore, they were put to trial. The prosecution produced 10 witnesses. Shri Datt, learned senior counsel submits that on the date of incident, marriage of appellant Salikram cousin of Dayashankar was to take place. Both of them were busy in the ceremony and had no knowledge of the said incident. Similar is the defence of appellant Jhabbu.
6. Learned Senior counsel submits that P.W.2 is the son of the deceased; whereas, P.W.3 is the widow. If their statements in the court are compared with their police statement recorded under section 161 Cr.P.C, it will be clear that their statements are not trustworthy. Learned Senior counsel has taken pains to refer the police statements and the statements of 3 said witnesses recorded in the court to bolster his submission that P.W.2 Satish in police statement has mentioned that appellant No.1 was carrying an axe, appellant No.2 was carrying a hockey stick and appellant No.3 and 4 were carrying axes. In the statement recorded in the court, the appellant No.1 was said to be carrying hockey stick and not an axe. Thus, it is urged that there are serious contradiction as to which blow is caused by which weapon and by which appellant. This makes the story of prosecution highly doubtful. Shri Datt further urged that soon after recording F.I.R, Radhelal died. Thus, F.I.R can be treated as a dying declaration. After recording F.I.R, another dying declaration was recorded. If both the dying declarations are examined in juxtaposition, it will be clear that the narration of Radhelal was different. In F.I.R he took the name of Salikram, Jagdish, Dayashankar and Jhabbu and stated that Salikram, Jagdish and Dayashankar assaulted him with axe; whereas, Jhabbu used a hockey stick. In second dying declaration, he did not take the name of Jhabbu and stated that Jagdish and Dayashankar assaulted him with an axe. Thus, there are serious discrepancies in the dying declaration which makes it untrustworthy. The contention of learned Senior counsel for the appellants is that Dayashankar has allegedly used hockey stick as per statement of P.W.2 but no injury from hockey blow is established. By taking this court to the nature of injuries, it is urged that Dayashankar has beeen falsely implicated and name of Jhabbu is missing from the second dying declaration.
7. Furthermore, it is urged that the P.W.2 and P.W.3 were contradicted with their previous police statements and they have disowned certain parts of the police statements. Thus conviction based on such evidence needs interference. In support of aforesaid contentions, reliance is placed on 1995 Suppl (3) SCC-658(Namwar Dubey and others Vs. State of U.P.). To sum-up, the appellants argued that in view of serious material contradictions between police statements, statements in the court and dying declarations, it is clear that appellants were falsely implicated.
8. Per contra, Shri Shashank Upadhyay, learned Govt. Counsel supported the impugned judgment.
49. No other point is pressed by learned counsel for the parties.
10. We have bestowed our anxious consideration on rival contentions and perused the record.
11. The bone of contention between the parties is that there are serious contradictions in aforesaid statements/ dying declarations in relation to use of a particular weapon and resultant injury caused by appellants and also about the presence of all the appellants at the place of incident. Before dealing with this aspect, it is apposite to mention here that Dr. Kamlesh Silawat (P.W.7) entered the witness box and proved the medical documents wherein following injuries were found in the body of Radhelal : (page
-51/72).
"1. Incised wound, deep, horizontally placed on left armpit. Bleeding present. Wound size 10 cm X 4 cm X skin, muscle and bone deep. On breathing air, blood was oozing. Injury on left lung was also present.
2. Deep incised wound incised wound on right side of waist. Horizontally placed. Bleeding from wound. Size 8 cmX 4cm X skin, muscle deep. Depth clearly measured.
3. Deep incised wound on lateral aspect of left lower arm. Horizontally placed. Size 6 cm X 3cm X skin, muscle and bone deep. Oozing of blood from wound present.
Opinion : Above injuries were caused by hard, heavy and sharp edged object."
12. In a case of this nature, where the deceased was jointly attacked by a number of persons with different weapons, it was difficult, if not impossible to state with precision as to which blow delivered by which accused had landed on which part of the body of the deceased. Section 34 of the IPC has been enacted for just such a purpose. In such kind of incident, slight variation in the statements of witnesses in relation to use of 5 particular weapon and injury received therefrom, cannot be a reason to disbelieve the evidence if it is otherwise creditworthy. {See :AIR 2003 SC 3134 Shridhar Vs. State of M.P}. Similar view is taken in 1997(4) SCC- 192 Satbeer Vs. Surat Singh. In 2006 (10) SCC 313 Kallu Vs. State of M.P, it was held that evidence of eye witnesses cannot be discarded because of minor inconsistencies in their evidence relating to the exact site of occurrence and the exact nature of injuries. Such inconsistencies are not sufficient to disbelieve the evidence of eye witnesses. It is not necessary that all eye witnesses should specifically refer to the distinct act of each of the appellants. A division Bench of this court followed the same principle in 2004(1) MPLJ 530 Jugru Vs. State of M.P. In Seeman Vs. State by Inspector of Police- 2005(11) SCC 142, it was poignantly held that injuries on person of deceased caused in quick succession and in short time can be supported by generalized statements as regards injuries and such statement would be more credible than particularized statement of location of injuries on body of deceased. In the light of the aforesaid principle laid down by Apex Court, we are unable to disturb the impugned judgment on the ground of alleged discrepancy in use of weapon by each of appellants and injury caused therefrom.
13. The P.W.2 and P.W.3 were contradicted with their previous police statements and true it is that they disowned certain portion of previous statements which were duly marked before the court below. We have carefully gone through such disowned portion of previous statements and are of the view that these parts will not cause any dent on the remaining portion of their evidence; wherein, they have categorically taken the names of appellants and deposed that they assaulted Radhelal with deadly weapons.
14. The ancillary question is regarding involvement of Jhabbu in view of submission of Ld. sr. counsel that his name is missing from the second dying declaration. This is trite law that dying declaration can be treated as a substantive piece of evidence. The evidentiary value of dying declaration was considered by Supreme Court in catena of judgments, gist of which is based on the legal maxim- "Nemo moriturus praesumitur mentire- No one 6 at the point of death is presumed to lie." "A man will not meet his Maker with a lie in his mouth" - Is the philosophy in law underlying admittance in evidence of dying declaration. "A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration (See: AIR 2001 SC 2383, [Smt. Laxmi vs. Om Prakash & others]. However, it is noteworthy that in a case of multiple dying declarations, in 2004 (10) SCC 769, [Nallam Veera Stayanandam & ors. vs. Public Prosecutor, High Court of A.P.] it was held that in a case of multiple dying declaration each dying declaration, will have to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. It is the duty of the Court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs. In the light of this principle, we deem it proper to examine both the dying declarations.
15. In the first dying declaration/FIR, the deceased Radhelal stated that Shaligram and Jagdish assaulted him with axe, whereas Dayashankar assaulted him by wooden handle of the axe. Jhabbu alias Mukesh assaulted him with hockey on his back. In second dying declaration, Radhelal stated that three persons caught him and said three persons were named as Jagdish, Shaligram (Shalku) and Dayashankar. He further stated that these three persons assaulted him with the axe. In the second dying declaration, name of Jhabbu alias Mukesh is totally absent. It is relevant to note here 7 that no injury on the back portion of the body of Radhelal was found in the medical examination/postmortem report. Thus, presence of Jhabbu as per first dying declaration/FIR is highly doubtful. More so, when in the second dying declaration, the deceased had not taken the name of Jhabbu at all. Thus, in our judgment, the presence of Jhabbu alias Mukesh and any assault by him is highly doubtful. In absence of any injury found on the person of deceased, which is allegedly caused by Jhabbu and for the reason his name was not taken by Rahelal in the second dying declaration, we deem it proper to exonerate Jhabbu alias Mukesh by giving him the benefit of doubt.
16. In view of foregoing analysis, it is clear that the prosecution has satisfactorily and beyond reasonable doubt established that appellant No.1, 3 and 4 in furtherance of their common intention with each other, have intentionally caused bodily injuries to Radhelal which were sufficient in ordinary course of nature to cause his death. The Court below has not committed any error in holding appellant No.1, 3 and 4 as guilty for committing offences under Section 302/34 IPC. To this extent, no interference is warranted by this Court in the impugned judgment. However, as noticed above, the appellant No.2 Jhabbu @ Mukesh deserves benefit of doubt and consequent acquittal.
17. In the result, the appeal is partly allowed to the extent indicated above. Appellant Jhabbu is acquitted of the offence punishable under section 302 read with section 34 of the IPC. Conviction and sentence of the remaining appellants is hereby affirmed.
(Sujoy Paul) (C.V.Sirpurkar)
Judge Judge
MKL
Digitally signed by
MANOJ KUMAR LALWANI
Date: 2019.02.14 17:20:16
+05'30'