Madhya Pradesh High Court
Santu Choudhary vs The State Of Madhya Pradesh on 16 September, 2019
Author: Jagdish Prasad Gupta
Bench: Vishnu Pratap Singh Chauhan, Jagdish Prasad Gupta
1 Cr.A.No.749/2010
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.749/2010
Santu Choudhary and two others
-V/s-
State of Madhya Pradesh
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Present:- Hon'ble Shri Justice J.P. Gupta
Hon'ble Shri Justice Vishnu Pratap Singh Chauhan
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Shri Khalid Noor Fakhruddin, counsel for the appellant.
Shri S.B. Agnihotri, GA for the respondent/State.
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JUDGMENT
(16-09-2019) Per : Vishnu Pratap Singh Chauhan, J.
1. Appellants have filed this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the conviction and sentence passed in judgment dated 29.03.2010 passed in Sessions Trial No.287/2008 by V Additional Sessions Judge (Fast Track Court), Satna; whereby the learned trial Court convicted and sentenced appellants Santu Choudhary, Naresh Choudhary and Raja @ Rajkumar as follows:
CONVICTION SENTENCE
Section Act Imprisonment Fine, if Imprisonment
deposited details in lieu of fine
458 IPC R.I. for 5 years with fine 1 month S.I.
of Rs.1000/-.
302/34 IPC Life Imprisonment with 2 months S.I.
2 Cr.A.No.749/2010
fine of Rs.2000/-
506-II IPC R.I. for 1 year Nil Nil
All the sentences have been directed to run concurrently.
2. The case of the prosecution against the appellants in nutshell is that deceased Amar Singh was a married person having three children. Amar Singh did the work of Mason and lived in the rented room situated in the house of Molai (PW-7) at Satna. Tara Bai (DW-1) is widow having three children. Deceased Amar Singh developed some relationship with Tara Bai and both lived in relationship. Tara Bai is the sister of appellant no.1 Santu Choudhary, appellant no.3 Raja @ Rajkumar is her brother-in-law (Jeth) and appellant no.2 Naresh Choudhary is the son of appellant no.3 Raja @ Rajkumar. All appellants developed an animosity with the deceased because the deceased was having illicit relations with Tara Bai and kept her as his wife. Owing to that animosity, on 12.09.2008 at about 3:30 a.m. appellant Santu Choudhary armed with sword and appellants Raja and Naresh armed with sticks, entered into the house of Amar Singh and started beating him. Appellant Santu assaulted by sword and rest of appellants assaulted by sticks. They dragged Amar Singh outside the house and again started beating Amar Singh. On hearing sound of help "Bachao Bachao", house owner Molai (PW-7), Kamlesh Choudhary (PW-5), Kandhilal (PW-6), Nand Kishore Choudhary (PW-8), Bela Choudhary (PW-14) and Jitendra Choudhary (PW-23) rushed on the spot. The appellants seeing those persons, fled away from the spot. Amar Singh sustained grievous fatal injuries. Jitendra 3 Cr.A.No.749/2010 Choudhary (PW-23), Kamlesh Choudhary (PW-5) and Kandhilal (PW-6) took Amar Singh at police station Kotwali District Satna. Amar Singh lodged a report. Head Constable Upendra Nath Tiwari (PW-1) recorded the report and registered Crime No.495/2008 for the offence punishable under Sections 307, 452, 323, 294, 323, 324 and 506 read with Section 34 of the Indian Penal Code and sent Amar Singh to District Hospital, Satna for MLC and further treatment.
3. Dr. B. L. Patel (PW-21) examined the injuries of Amar Singh and prepared MLC report Ex.P/27 and got admitted Amar Singh in the hospital in ward no.1 and during treatment Amar Singh succumbed to injuries at 7:20 a.m. Dr. B. L. Patel (PW-21) sent the information Ex.P/26 to the In-charge of police chowki. Rajesh Tripathi (PW-20), ward boy delivered the information at police chowki District Hospital, Satna and on that basis, marg intimation no.0232/08 was registered there. Dr. Arun Nayak (PW-12) conducted autopsy of the body and submitted postmortem report Ex.P/11 and opined that death was due to shock because of profuse bleeding from the wounds. Dr. B. L. Patel (PW-21) clearly stated that there were so many incised wounds over the left side of neck and over left hand and right hand of Amar Singh. He further stated that blood pressure and pulse rate could not be detected. Amar Singh was in shock condition and was not able to speak. He prepared postmortem report Ex.P/11. The investigating officer interrogated appellant Santu Choudhary, recorded information Ex.P/17 and on the basis of information, recovered a sword at 4 Cr.A.No.749/2010 his instance and prepared seizure memo Ex.P/19 and in the same way he interrogated appellant Naresh Choudhary and prepared memorandum Ex.P/17 and seized a stick at his instance and prepared seizure memo Ex.P/21 and also interrogated appellant Raja @ Rajkumar recorded information Ex.P/18 and recovered a stick at his instance and prepared a seizure memo Ex.P/20. All articles were sent to Forensic Science Laboratory and after completion of investigation, charge sheet was filed.
4. Learned trial Court framed the charges against each of the appellants. They abjured their guilt and therefore they were put to trial.
5. The prosecution to bring the charge at home examined in all 23 witnesses and examined all appellants under Section 313 of Cr.P.C. Appellant Santu Choudhary took the defence that he was at home at the time of incident and pleaded himself innocent. Appellants Naresh Choudhary and Raja @ Rajkumar took the defence that a day before the incident they had gone for fishing outside and on the second day of the incident came back home. They have been falsely implicated. They examined Tara Bai (DW-1) in their defence.
6. Learned trial Court after hearing both the parties delivered the judgment on 29.03.2010 convicting each of the appellants for the offences punishable under Sections 458, 302/34 and 506-II of the I.P.C. and sentenced them as aforesaid. Being aggrieved by that conviction and sentence, the appellants jointly filed this appeal under Section 374(2) of the Code of Criminal Procedure on the ground that learned 5 Cr.A.No.749/2010 trial Court not appreciated the evidence properly. There are so many contradictions and omissions found in the statements of witnesses. FIR Ex.P/1 does not come under the ambit of dying declaration. Doctor categorically stated that Amar Singh was not in a position to give statement, in spite of that, learned trial Court considered the FIR Ex.P/1 as dying declaration. The learned trial Court committed a gross error in treating the FIR as dying declaration. All eyewitnesses have not stated anything against the appellants. They have been turned hostile. Tara Bai (DW-1) and Molai (PW-7), who lived in the adjacent room of the deceased, have not stated anything against the appellants. The trial Court has not appreciated the evidence in proper perspective. The prosecution failed to bring the charge against the appellants beyond doubt. The learned trial Court erred in convicting and sentencing the appellants. Therefore, it has been prayed to set aside the conviction and sentence passed by the trial Court and prayed for acquittal of the appellants.
7. Learned Government Advocate for the respondent/State on the other hand submitted that there are sufficient material available on record to bring home the charges against the appellants. He supported the judgment of conviction and sentence passed by the trial Court. Hence, he prayed for dismissal of the appeal.
8. Heard both counsel for the parties and perused the record of the trial Court. On perusal of whole statements of both doctors Dr.Arun Nayak (PW-12) and Dr.B.L. Patel (PW-
21), this Court is of the opinion that after considering the 6 Cr.A.No.749/2010 injuries found on the body of the deceased, there was no crush injury. All injuries are incised wounds. Amar Singh received grievous injuries. He was in shock owing to profuse bleeding. The nature of death was homicidal. The learned trial Court after considering the elaborate discussion concluded that death of Amar Singh was homicidal. This Court is agreed with this finding.
9. Now the question arises as to whether the injuries inflicted by the appellants was with intention or knowledge to cause death of Amar Singh.
10. Perused the statements of witnesses recorded by the trial Court. The main witness, who reached on the spot is Kamlesh Choudhary (PW-5). Kamlesh Choudhary in his statement not stated anything against the appellants. He stated that on hearing sound of "Chor Chor", he went outside his house and saw Amar Singh was in injured condition lying in the water passage (hereinafter referred to as 'Nala'). The prosecution turned this witness hostile. On asking the leading questions, this witness did not support the story of prosecution. Another witness Kandhilal (PW-6) also uttered the same story as uttered by Kamlesh Choudhary (PW-5). This witness also did not state anything against the appellants in his statement. Another witness Molai (PW-7) stated that Kandhilal lived in his house in a rented portion. When this witness woke up in the morning and heard the commotion he reached on the spot and found that Amar Singh was in injured condition. He took Amar Singh to the hospital. He did not see who assaulted Amar Singh. This witness also turned hostile. Bela 7 Cr.A.No.749/2010 Choudhary (PW-14) in the same way stated that he did not know how Amar Singh died. This witness also turned hostile. He did not utter anything against the appellants.
11. Both witnesses Molai (PW-7) and Bela Choudhary (PW-
14) lived in the adjacent room of Amar Singh. Jitendra Choudhary (PW-23) also stated that after hearing the sound of "Chor Chor" he rushed to the spot and saw that Amar Singh was lying in the water passage (Nala). He did not state anything against the appellants. Nand Kishore Choudhary (PW-8) in the same way stated that on hearing the sound of "Chor Chor", this witness rushed on the spot and saw that Amar Singh was lying in the Nala in unconscious condition having injuries on the body and blood was oozing out from the wounds. Kamlesh Choudhary (PW-5) called the police then police came on the spot. Kandhilal (PW-6) stated that Kamlesh (PW-5) phoned to police then police came on the spot. Then this witness along with other witnesses and Amar Singh went to police station. Nand Kishore Choudhary (PW-8) also stated that they informed to police station Kotwali. Then police came there and took Amar Singh to hospital. Some witnesses stated that police took Amar Singh to the police station and some witnesses stated that they took Amar Singh to the hospital.
12. Head Constable Upendra Nath Tiwari (PW-1) stated that on 12.09.2008, he was posted at police station Kotwali, Satna. Amar Singh lodged a report (Ex.P/1) and registered a Crime No.495/2008 against the appellants and he put a thumb impression on Ex.P/1. Another witness PW-2 V. K. 8 Cr.A.No.749/2010 Vishwakarma is the witness of inquest report Ex.P/2. PW-3 Laxmi Singh is the sister of Amar Singh. She is a hearsay witness. She heard about the incident and reached to the hospital after the death of Amar Singh. Dayal Singh (PW-4) is brother-in-law of Amar Singh. This witness was informed after the death of Amar Singh. This witness is a hearsay witness. Head Constable Bhiman Vishwas (PW-9) recorded the marg intimation received from police chowki District Hospital, Satna. ASI Kalyani Pal (PW-10) is also a witness of marg intimation.
13. ASI D.R. Sharma (PW-22) is the Investigating Officer, who conducted the whole investigation. He stated that he prepared the spot map Ex.P/3 at the instance of Kamlesh and Kandhilal and in the house of Molai Choudhary seized blood stained soil and simple soil and prepared memo Ex.P/4 and also prepared inquest report Ex.P/2 of the body of Amar Singh at District Hospital Satna and sent the body for postmortem. This witness stated that he took the appellants in custody on the same day. Appellant Naresh Choudhary informed about the stick hided in his house in presence of Arvindra Shukla (PW-17) and Dharm Sharma (PW-18). This witness seized the stick at the instance of appellant Naresh Choudhary. That stick was stained with blood and prepared memorandum Ex.P/16 and seizure memo Ex.P/21. In the same way, this witness stated that appellant Santu Choudhary informed about the sword and stated that he hided the sword in his house and this witness recovered the sword at the instance of appellant Santu Choudhary and prepared memorandum Ex.P/17 and 9 Cr.A.No.749/2010 seizure memo Ex.P/19 in presence of Arvindra Shukla and Dharm Sharma. In the same way, appellant Raja @ Rajkumar informed about the stick. This witness recorded the information and seized the stick at the instance of appellant Raja @ Rajkumar vide memo Ex.P/18 and seizure memo Ex.P/20. This witness stated that sword seized at the instance of appellant Santu Choudhary having blood on the blade of the sword and stick seized at the instance of appellant Raja @ Rajkumar also having some blood spots. This witness stated that all seized weapons and the clothes sealed by doctor and soil seized from the spot were sent for examination to FSL Sagar by Superintendent of Police. FSL report was received during the pendency of the trial. As per the FSL report, sword and both the sticks were stained with human blood but blood was not sufficient to ascertain the blood group.
14. Learned trial Court found proved that Amar Singh before his death lodged FIR Ex.P/1. In that FIR, he narrated the name of each of the appellants and the manner they inflicted injuries and treated Ex.P/1 FIR as a dying declaration under Section 32 of the Evidence Act and also found proved the seizure of the weapons from the possession of the appellants at their instance. Human blood was found on that weapons to connect the appellants for the commission of offence.
15. Learned counsel appearing for the appellants submitted that when Amar Singh was taken to the hospital, he was in unconscious state. He could not lodge the FIR. Dr. B. L. Patel (PW-21) clearly stated that Amar Singh was in shock condition and was not in a position to say anything. Amar 10 Cr.A.No.749/2010 Singh was capable to sign on the paper, as he was educated up to Class XII but there is a thumb impression on FIR Ex.P/1. It is a fabricated document which cannot be believed and should not be considered as dying declaration of Amar Singh.
16. After considering the statements, this Court is of the opinion that after recording of the FIR and statement under Section 161 of the Cr.P.C. if person is found to be in fit mental condition to state anything clearly that FIR and statement recorded under Section 161 of Cr.P.C. can be treated as dying declaration. Hon'ble Apex Court in the case of Bhola Turha vs State of Bihar, AIR 1998 SC 1515 held that conviction can solely be based on dying declaration if dying declaration is found to be reliable.
17. Head Constable Upendra Nath Tiwari (PW-1) stated that he lodged a report Ex.P/1 at the instance of Amar Singh and he put a thumb impression on FIR Ex.P/1. ASI D.R. Sharma (PW-22) who investigated the matter did not state anywhere that he recorded the statement of Amar Singh under Section 161 of Cr.P.C. Perused Ex.P/1 in which the names and act attributed to the appellants were clearly mentioned. There is a thumb impression at the bottom of FIR Ex.P/1. Head Constable Upendra Nath Tiwari stated that there was urgent need to shift Amar Singh to hospital therefore, he was immediately shifted to the hospital. Constable Rajendra Kumar Pradhan took Amar Singh to the hospital for treatment. The statement of Rajendra Kumar Pradhan has not been recorded during trial. Dr. B. L. Patel (PW-21) stated that Amar Singh was brought by Sainik Vinod to District Hospital, 11 Cr.A.No.749/2010 Satna for medical treatment. This witness categorically stated that Amar Singh was in serious condition. His blood pressure and pulse rate could not be detected. He was in shock condition. He immediately admitted Amar Singh in ward no.1. In his cross-examination in para 4, this witness admitted that Amar Singh was in shock condition. He was not in a position to speak anything.
18. Hon'ble Apex Court in the case of Bablya alias Ramesh Shankar Yarpude vs State of Maharashtra, 2003 Cri.L.J 731, the Hon'ble Apex Court held in para 7 as here-under:
7. The only evidence, which the prosecution could adduce in support of its case, was the evidence of P.S.I. Pandharinath (P.W. 20) who has proved the dying declaration recorded by him. P.W. 20 Pandharinath has stated in his evidence that when Pramod was admitted in the Hospital, he sent a requisition to Dr. Rajaram Dhole (P.W. 18) who has given a certificate on the requisition itself that the patient is fit to give statement. P.W. 20 Pandharinath, in his evidence, has stated that he recorded the statement of Pramod, in view of the fitness certificate given by P.W. 18 Dr. Rajaram Dhole. It is difficult to accept the said evidence which has been adduced by the prosecution. Though normally when the Doctor gives a certificate of fitness in respect of the patient who is admitted in his hospital or under his care and custody, is sufficient for the purpose of accepting the said evidence as has been observed by the Apex Court in number of judgments, yet the evidence of the Investigating Officer and other circumstances also have to be taken into consideration in order to see whether the said evidence is trustworthy or not. In our view, the evidence of P.W. 20 Pandharinath cannot be relied upon, firstly, because so far as deceased Pramod is concerned, he was admitted in the Hospital in an unconscious condition. P.W. 7 Raji Chhole who is a rickshawala a who brought deceased 12 Cr.A.No.749/2010 Pramod to the Hospital, has deposed that the people forcibly put the body of Pramod in his rickshaw and asked him to take that body to the Hospital. These persons told the rickshawala that they would follow him. However, nobody followed P.W. 7 Raji and he alone took the injured Pramod to Mayo Hospital. P.W. 7 Raji has categorically stated that when injured Pramod was admitted in the Mayo Hospital, he was unconscious. P.W. 18 Dr. Rajaram Dhole in his cross-examination has also admitted that from the hospital record which was shown to him it was clear that the deceased, when admitted in the hospital, was unconscious. The thumb impression of the deceased has been taken at the bottom of one paper. It is not mentioned that as why the thumb impression has not been attested by any person. It is also not mentioned that whether it is right or left hand thumb impression of either deceased or any other person. On the left hand corned of the said document Exh. 61 there is a remark that patient is fit to give statement. Below that the date and time is mentioned. It is pertinent to note that the time is shown at 1.10 a.m., Deceased Pramod was admitted in the hospital at about 11-11-30 p.m. and he died in the early morning on the next day i.e. on 16-9-1995. P.W. 20 Pandharinath in his statement in cross-examination has admitted that at 11-30 p.m. he has received information that the patient was unconscious and was unable to give any statement.
He has further stated that he had recorded the statement of the injured in the ward when he was brought from the operation theatre. He has stated that the injured was already removed to the operation theatre before he reached Mayo Hospital. He has also admitted that the P.I. had told him that he should call a Executive Magistrate for recording the dying declaration. He has further admitted that he did not issue any letter to the Magistrate to record dying declaration and that he had given requisition to the Executive Magistrate in the morning. From the evidence of P.W. 20 Pandharinath it is difficult to accept his version that Pramod would have been conscious and fit to make the statement immediately after 13 Cr.A.No.749/2010 he was brought from the operation theatre. Normally when the patient is sent to the operation theatre for the purpose of a major operation he is given general anesthesia and normally it takes some time for the patient to revive his consciousness from the said anesthesia. It is, thus, difficult to believe the version of P.W. 20 that immediately after Pramod was brought from operation theatre, he would be in a fit and conscious condition to make a statement. In our view, therefore, the evidence of P.W. 20 Pandharinath is not trustworthy especially when there is no evidence on record which would establish that the accused appellant has committed the murder of deceased Pramod. In the absence of any other evidence on record, it is difficult to rely on the dying declaration recorded by P.W. 20 Pandharinath especially When admittedly there are number of lacunae and the procedure which is normally required to be followed in recording of the dying declaration, has not been followed. There is also a very serious doubt in our mind as to whether the patient was really in a fit state and condition to make that statement soon after he had been brought from the operation theatre. It is an admitted position that. the deceased died in the early hours in the morning. Neither Dr. P.W. 18 was present at the time of recording dying declaration nor any certificate has been given by him at the end of the recording of dying declaration regarding fitness of the deceased. Under such circumstances, we are of the view that the accused is entitled to be given benefit of doubt. Under the circumstances, the appeal will have to he allowed.
Hon'ble Apex Court in the case of Brundaban Moharana and another vs State Of Orissa, AIR 2010 SCW 7285 in para 3 as hereunder:
3. He also admitted that he had not recorded the statement of the Doctor who was treating the injured. We are of the opinion that in the light of the aforesaid statement as the very capacity of the injured to make a 14 Cr.A.No.749/2010 statement was in doubt, some support could have been found by the prosecution had the attending doctor been examined or an endorsement taken from him that the injured was fit to make a statement. On the contrary, however, the PW-9 admitted that though the statement had been recorded in the presence of PW-3 and PW-7 as well as the doctor, he had still not taken his opinion. No reliance can, therefore, be placed on this dying declaration as well.
19. After considering the above proposition of law and the evidence on record, as discussed above, this Court finds that in the instant case, Head Constable Upendra Nath Tiwari (PW-1) recorded the FIR Ex.P/1 at the instance of Amar Singh but the witnesses, who brought Amar Singh at police station and went along with the police at police station, no where stated that Amar Singh was conscious and able to speak at the time of recording of FIR, instead they stated that Amar Singh was lying in unconscious state in the Nala. They did not support the fact that while recording Ex.P/1 FIR Amar Singh was in fit mental state to record the FIR. Head Constable Upendra Nath Tiwari (PW-1) also stated that when Amar Singh was brought to police station, his condition was critical and he was immediately shifted to the hospital. This witness recorded the FIR (Ex.P/1) and obtained the thumb impression of Amar Singh but he has not explained as to why he did not obtain the signature of Amar Singh on the FIR Ex.P/1 in spite of the fact that Amar Singh was literate person. Dr. B.L. Patel (PW-21) also stated that Amar Singh was in unconscious state. His blood pressure and pulse rate could not be detected as he was in shock condition. This doctor has no where stated that 15 Cr.A.No.749/2010 when Amar Singh was brought to the hospital he was in fit mental condition to say anything.
20. In the aforesaid circumstances, this Court is of the affirmed view that it is a case of serious doubt that Amar Singh was brought in conscious condition at the police station. The investigating Officer neither called the Executive Magistrate nor requested the doctor to record the dying declaration of Amar Singh after recording the FIR. He immediately shifted Amar Singh to the hospital. Both doctors stated that Amar Singh was brought in unconscious condition and no where stated in their statements that he was in fit condition to furnish information about the incident. Therefore, this FIR Ex.P/1 cannot be said to be dying declaration of the deceased, as the same was recorded in a suspicious manner. The statement of 161 Cr.P.C. has not been recorded and not submitted in evidence during trial. The recording of FIR is surrounded with a strong suspicion and cannot be believed.
21. When the dying declaration is unbelievable, mere recovery of human blood stained articles, in absence of evidence of blood group of the deceased and DNA report, is not sufficient to arrive at the conclusion that the appellants are the culprits of the murder of the deceased.
22. In the above circumstances, this Court is of the view that the learned trial Court has not appreciated the evidence properly and committed error in considering the FIR Ex.P/1 as dying declaration of the deceased. We are of the affirmed view that the prosecution has failed to prove the charges against the appellants beyond doubt.
16 Cr.A.No.749/201023. Consequently, this appeal succeeds and is allowed. The conviction and sentence imposed by the trial Court against each of the appellants is hereby set aside. The appellants are in jail. They shall be set at liberty forthwith if not required in any other case.
(J. P. Gupta) (Vishnu Pratap Singh Chauhan)
Digitally signed
by BIJU
b
Date: 2019.09.20
13:59:47 +05'30'
Judge Judge
HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.749/2010
Santu Choudhary and two others
-V/s-
State of Madhya Pradesh
For consideration
( Vishnu Pratap Singh Chauhan)
Judge
/09/2019
Hon'ble Shri Justice J. P. Gupta
(J. P. Gupta)
Judge
/09/2019
Post for : /09/2019
( Vishnu Pratap Singh Chauhan)
Judge
/09/2019