Allahabad High Court
Ranjeet @ Jamidar vs State Of U.P. on 7 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1847, (2019) 109 ALLCRIC 896
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved On:- 11.09.2019 Pronounced On:- 07.11.2019 Court No.-18 Case :- CRIMINAL APPEAL No. - 286 of 2002 Appellant :- Ranjeet @ Jamidar Respondent :- State Of U.P. Counsel for Appellant :- R.U.Pandey,R K Dwivedi Counsel for Respondent :- Govt.Advocate Hon'ble Ved Prakash Vaish, J.
Hon'ble Mohd. Faiz Alam Khan, J.
(Delivered by Hon'ble Ved Prakash Vaish, J.)
1. Heard Sri Rajesh Kumar Dwivedi, learned amicus curiae for the appellant and Sri Pankaj Kumar Tiwari, learned Addl. G.A. for the State.
2. This appeal is directed against the judgment and order dated 22nd December, 2001 passed by learned Additional Sessions Judge/Special Judge, Essential Commodities Act, Sultanpur, in Sessions Trial No.353 of 1996 titled as State vs. Ranjeet @ Jamidar, whereby the appellant has been convicted for the offence under Section 302 of the Indian Penal Code (hereinafter referred to as "I.P.C.") and sentenced to undergo rigorous imprisonment for life and to pay fine for a sum of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. The appellant has also been convicted for the offence under Section 324 of I.P.C. and sentenced to undergo rigorous imprisonment for three years and to pay fine for a sum of Rs.5,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months.
3. The facts as unfolded during trial of the case are that the complainant, Ram Bahadur Yadav S/o Dwarika Prasad lodged a complaint on 15.05.1996, in which, he stated that on the intervening night of 14/15.05.1996 at about 11:00 PM, marriage procession (barat) had come to his village, on hearing of yelling of mother of Murali S/o Lal Bahadur, he went towards her house and saw that the appellant, Ranjeet @ Jamidar, who belongs to his village was beating to his bhabhi, Shivkali with kulhadi (axe) as a result of which she received injuries on her head and stomach, when he tried to separate her, he was also attacked on head by accused, when they cried then Murali, Chhatai and other persons came there and at that time Ranjeet @ Jamidar ran away from the spot.
4. On the basis of the said complaint, the First Information Report (hereinafter referred to as "F.I.R.") No.28 of 1996 for the offence under Sections 324/307 of I.P.C. was recorded as Case Crime No.95 of 1996 at Police Station Munshiganj, District Sultanpur. The same is recorded in general diary as report No.2. During investigation, the injured, namely, Shivkali and Ram Bahadur Yadav were medically examined, statement of injured, Smt. Shivkali was recorded. The injured, Smt. Shivkali died on 15.05.1996, inquest paper was prepared, postmortem got conducted by Dr. C.P. Tiwari at District Hospital Sultanpur. After completion of the investigation, chargesheet for the offence under Sections 302 and 324 of I.P.C. was filed against the appellant. After complying with the provisions of Section 207 of I.P.C., the case was committed to learned Sessions Judge, Sultanpur.
5. After hearing both the parties and considering the record of the case, on 20th November, 1998, learned trial court found sufficient ground to proceed against the appellant, Ranjeet @ Jamidar for the offence punishable under Sections 302 and 324 of I.P.C. The appellant abjured his guilt and claimed trial.
6. In support of its case, the prosecution examined as many as nine witnesses. PW-1, Ram Bahadur Yadav is the complainant, he has proved the complaint as Ex. KA-1. PW-2, Chhotai is an eyewitness, he deposed that marriage procession (barat) had come to his house about four years ago in the month of May, marriage procession (barat) had come to his house at about 11:00 PM, he heard yelling of Smt. Shivkali widow of Lal Bahadur, he reached at her door and saw that Ranjeet was giving beating to Shivkali with kulhadi (axe), when Ram Bahadur Yadav was tired to separate them then Ranjeet inflicted kulhadi (axe) on him also, there was a light of lamp on the door of Shivkali, Murali also reached there, who saw the incident, Murali is the elder son of Smt. Shivkali, he identified accused/appellant, Ranjeet who inflicted injuries on the head and stomach of Shivkali and Ram Bahadur received two injuries, Ram Bahadur and Ram Shankar took Shivkali to Police Station and case was registered and Shivkali was sent to District Hospital where she died at about 9:00 AM. PW-3, Dr. A.P. Mishra from District Hospital, Sultanpur, who medically examined the injured, namely, Smt. Shivkali and Ram Bahadur Yadav, he has proved the medical report of Shivkali as Ex. KA-2 and medical report of Ram Bahadur Yadav as Ex. KA-3, he disclosed five injuries on the body of of deceased Shivkali and two injuries on the body of Ram Bahadur Yadav and the injured Shivkali was in serious and shocked position. PW-4, S.I. Ramvali Pandey is the Investigating Officer, he has deposed that on 15.05.1996, investigation was handed over to him, he recorded statement of injured, Smt. Shivkali W/o Lal Bahadur, which is Ex. KA-4, thereafter, he recorded statement of Ram Bahadur Yadav and statement of Murali, he inspected the spot and prepared the site plan which is Ex. KA-5 and recorded the statement of Vasudev Yadav and Chhotelal who are the witnesses of recovery, S.O. Ajeet Kumar Singh seized bloodstained soil and plain soil vide seizure memo as Ex. KA-6, which wears his signature. PW-5, Dr. C.P. Tiwari, who conducted autopsy on the body of the deceased, Smt. Shivkali, he has deposed that on 15.05.1996 at about 5:00 PM he conducted autopsy on the body of Shivkali W/o Lal Bahadur, he has proved the postmortem report as Ex. KA-7, he opined the cause of death due to coma shock and hemorrhage as a result of anti-morterm injuries and injuries No.3 and 4 were possible with kulhadi (axe). PW-6, Ajeet Kumar Singh was working as S.O. Munshiganj, on 15.05.1996, he has deposed that Case Crime No.95 of 1996 under Sections 324/307 of I.P.C. was registered in his presence and the investigation was handed over to S.I. Ramvali Pandey, he along with Ramvali Pandey reached the spot and bloodstained soil, plain soil and kulhadi (axe) were seized vide seizure memo as Ex. KA-6, he has also deposed that on 16.05.1996 after the death of Smt. Shivkali, Section 302 of I.P.C. was added and the investigation was taken over by him, he recorded statements of Constable Dinesh Chandra Mishra and Ashok Kumar Singh and statement of Chhotai, he made efforts to arrest the accused but he was not traceable, on 19.05.1996, copy of panchnama and copy of postmortem report were kept on the file, on 01.06.1996, statement of S.I. M.P. Singh who prepared panchnama was recorded and other proceedings were conducted on 12.06.1996 and the recovered article from the spot were sent to FSL through Kailash Nath Katiyar on 05.06.1996, on 26.06.1996, remand of accused was obtained and chargesheet was prepared which is Ex. KA-8. He has also proved kulhadi (axe) as Ex.-1, which was recovered from the spot. PW-7, S.I. Mahendra Pratap Singh has proved the panchnama (inquest report) as Ex. KA-9 he has also deposed that he obtained R.I. papers, photographs of the body, challan vide seizure memo as Ex. KA-10 to Ex. KA-14. PW-8 C.P. Ashok Kumar Singh who recorded report No.12 at 9:15 Hrs on 16.05.1996 copy of which is Ex. KA-15. PW-9 HC Salik Ram Pandey who recorded the chick F.I.R., he has proved copy of F.I.R. as Ex. KA-16, he recorded Report No.2 at 2:30 PM on 15.05.1996 in the rojnamacha copy of which is Ex. KA-17.
7. After completion of prosecution evidence, Statement of the appellant/accused under Section 313 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") was recorded. The appellant denied complicity in the crime and pleaded false implication. He stated that on the night of the incident, he was in the house of his relative at Village Jalalpur and said that before incident his bhabhi (Shivkali) has complained that Ram Bahadur keeps bad eyes at her due to that he had scolded Ram Bahadur and further stated that Ex.-1, kulhadi (axe) was of the Ram Bahadur. Ram Bahadur had tried to rape his bhabhi. He is falsely implicated because he had opposed Ram Bahadur. The appellant choose not to lead defence evidence.
8. After appreciating evidence and considering the rival contentions of the parties, learned trial court found the appellant to be guilty having committed the offence under Sections 302/324 of I.P.C. and convicted the appellant for the same and sentenced him vide impugned judgment and order dated 22.12.2001.
9. Being aggrieved by the impugned judgment and order dated 22.12.2001, the appellant preferred the present criminal appeal.
10. Learned amicus curiae for the appellant contended that Smt. Shivkali died after about 4-5 Hrs of the incident but no dying declaration was recorded, the statement of injured recorded under Section 161 of Cr.P.C. cannot be treated as a dying declaration. The deceased Shivkali was not in a position to give any statement.
11. Learned amicus curiae for the appellant also urged that there is an inordinate delay in lodging the F.I.R., the incident occurred at about 11:00 PM on 14.05.1996, the complainant Ram Bahadur Yadav had received injuries and was not in a position to lodge the complaint and the F.I.R. was recorded on 15.05.1996 at 2:30 AM; the injured Smt. Shivkali died in District Hospital, Sultanpur on 15.05.1996 at 9:00 AM and the case was converted to Section 302 read with Section 324 of I.P.C. on 16.05.1996; the copy of F.I.R. was not forwarded to Ilaka Magistrate forthwith. Learned amicus curiae for the appellant also submitted that there is delay in conducting the inquest report. Crime number is not mentioned on the inquest report which creates suspicion that the F.I.R. was not in existence at the time of inquest report. In this regard, reliance was placed upon in the case of 'Marudanal Augusti vs. State of Kerala', 1980 SCC (Cri) 985 and 'Ishwar Singh vs. The State of Uttar Pradesh', AIR 1976 SC 2423.
12. Learned amicus curiae for the appellant further submitted that the weapon of offence i.e., kulhadi (axe) was not produced before the trial court and not shown to autopsy surgeon to seek whether the injuries to be caused by the said weapon or not; learned amicus curiae for the appellant also submitted that the prosecution has not been examined material witnesses, namely, Murali and Chhatai (who were the eye witnesses of the incident) and Chhotelal, Jokhuram and Vasudev (who were the witnesses of recovery), which creates suspicion in the case of prosecution; there are contradictions in the testimony of prosecution witnesses; there is no recovery of bloodstained clothes of the appellant. In this regard, reliance was placed upon in the case of 'Ishwar Singh vs. The State of Uttar Pradesh', AIR 1976 SC 2423.
13. Learned Addl. G.A. refuting the submission of learned amicus curiae for the appellant and submitted that the trial court has rightly analyzed the evidence on record and committed no error; the statement of injured Smt. Shivkali (who later on died) was recorded by PW-4, S.I. Ramvali Pandey on 15.05.1996 and the same is admissible in evidence and appellant/accused can be convicted on the basis of said dying declaration.
14. We have given our anxious thought to the submissions made by learned amicus curiae for the appellant and learned Addl. G.A. for the State and have carefully perused the material on record.
15. The main thrust of the submissions of learned amicus curiae for the appellant is that the statement of injured cannot be treated as dying declaration since death occurred at 9:00 AM on 15.05.1996 that is after about 10 Hrs. of the incident.
16. Before proceeding to examine the culpability of the appellant before us, in the conspectus of the facts, it would be worthwhile to consider the relevant provisions of Section 32 of the Indian Evidence Act. Section 32 of the Indian Evidence Act deals with the cases in which statement of relevant facts made by a person who is dead or cannot be found etc., is relevant viz-a-viz Section 161 and 162 of Cr.P.C. Section 32 of the Indian Evidence Act reads as under:
"32. Cases in which statement of relevant fact by 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.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
2................
3................
4................
5................"
17. Chapter XII of the Cr.P.C. contains Sections 161 and 162 of the Cr.P.C. Section 161 of the Cr.P.C. deals with examination of witnesses by Police. Section 162 of the Cr.P.C. deals with "statements to Police not to be signed: use of statements in evidence". Sections 161 and 162 of the Cr.P.C. read as under:-
"161. Examination of witnesses by police.--(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:
[Provided that statement made under this sub-section may also be recorded by audio-video electronic means:] [Provided further that the statement of a woman against whom an offence under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, Section 376, [Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB], Section 376-E or Section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.]
162. Statements to police not to be signed: Use of statements in evidence.--(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
18. Thus, from a bare reading of sub-Section(2) to Section 162 of Cr.P.C. it is clear that sub-Section(2) is an exception to what has been laid down in sub-Section (1). Therefore, the statement recorded by the police under Section 161 of the Cr.P.C., falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act is clearly relevant and admissible.
19. In 'Mukeshbhai Gopalbhai Barot vs. State of Gujarat', AIR 2010 SC 3692, the Hon'ble Supreme Court considered the provisions of Sections 161 and 162 of the Cr.P.C. and Section 32 of the Indian Evidence Act. In the said case, the victim, who received burn injuries on 14.09.1993 was admitted to Ahmedabad Civil Hospital, her statement was recorded by the Executive Magistrate and by the Police. The statement recorded by the Police under Section 161 of the Cr.P.C. was discarded by the High Court taking the view that it had no evidentiary value. The said view of the High Court was not accepted by the Hon'ble Supreme Court. It was held that the statement of the person recorded under Section 161 can be treated as dying declaration after death. The relevant paragraphs -4 and 5 read as under:-
"4. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations Exs.44 and 48 could not be taken as evidence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumulatively. These findings are, however, erroneous. Sub-section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under:
Sec.32. Cases in which statements of relevant fact by 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.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, Section 161 and 162 of the Cr.P.C. admittedly provide for a restrictive use of the statements recorded during the course of the investigation but sub-section (2) of Section 162 deals with a situation where the maker of the statement dies' and reads as under:
"(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act."
5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex.44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the Magistrate on 14th September 1993 would, in fact, be the First Information Report in this case."
20. In another case of 'Sri Bhagwan vs. State of Uttar pradesh', (2013) 12 SCC 137, while considering the provisions of Section 161 of the Cr.P.C. and Section 32 of the Indian Evidence Act, the Hon'ble Supreme Court observed as under:-
"20. While keeping the above prescription in mind, when we test the submission of the learned counsel for the appellant in the case on hand at the time when Section 161 CrPC statement of the deceased was recorded, the offence registered was under Section 326 IPC having regard to the grievous injuries sustained by the victim. PW 4 was not contemplating to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid. Before sending him to the hospital for proper treatment PW 4 thought it fit to get the version about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-2 came to be recorded. Undoubtedly, the statement was recorded as one under Section 161 CrPC. Subsequent development resulted in the death of the victim on the next day and the law empowered the prosecution to rely on the said statement by treating it as a dying declaration, the question for consideration is whether the submission put forth on behalf of the respondent counsel merits acceptance.
21. Mr Ratnakar Dash, learned Senior Counsel made a specific reference to Section 162(2) CrPC in support of his submission that the said section carves out an exception and credence that can be given to a Section 161 CrPC statement by leaving it like a declaration under Section 32(1) of the Evidence Act under certain exceptional circumstances. Section 162(2) CrPC reads as under:
"162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act."
22. Under Section 32(1) of the Evidence Act it has been provided as under:
"32. Cases in which statement of relevant fact by 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.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
23. Going by Section 32(1) of the Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement falling under Section 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
24. As far as the implication of Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 CrPC statement could be relied upon, as rightly contended by the learned Senior Counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying declaration falling within the four corners of Section 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 CrPC. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such."
21. In the case of 'Nijjam Faraghi alias Nijjam Faruqui vs. State of West Bengal', (1998) 2 SCC 45, the kerosene oil was poured on the victim and she was put on fire on 13.06.1985, she died on 31.07.1985. The Hon'ble Supreme Court after referred to the provisions of Section 32 of the Indian Evidence Act held that mere fact that the victim died long after making the dying declaration, said statement does not loose its value. The relevant paragraph of the said judgment reads as under:-
"9. There is no merit in the contention that the appellant's wife died long after making the dying declarations and therefore those statements have no value. The contention overlooks the express provision in Section 32 of the Evidence Act. The second paragraph of sub-section (1) reads as follows:
"Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in falsehood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the contents of the statements, the court can certainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable."
22. Law of dying declaration is, by now, almost settled that dying declaration is admissible in evidence by virtue of Section 32 of Indian Evidence Act. In the case of "Khushal Rao v. State of Bombay", 1958 SCR 552 it is held that :-
"xxxxx This provision has been made by the Legislature, advesedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of cross-examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected unless there are clear circumstances brought out in the evidence o show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight. It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood was ebbing away; or because the statement has not been properly recorded, for example, the statement had been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circumstances which can be said to detract from the value of a dying declaration. But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction."
23. In "Paparambaka Rosamma and Others v. State of A.P.", (1999) 7 SCC 695 it has been observed that where conviction is solely based on the dying declaration, the Court has to consider carefully the dying declaration and the evidence of the witnesses supporting it. Case should be taken to ensure whether it is established that the dying declaration was genuine, true and free from doubts and was recorded when the injured was in a fit state of mind.
24. In the case of "Laxman Vs. State of Maharashtra" (2002) 6 SCC 710, the Constitution Bench of Hon'ble Court has held thus:-
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately hold the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
25. In "Laxmi V. Om Prakash", (2001) 6 SCC 118, the Supreme Court has pointed out that the admissibility of the dying declaration rests on the principle of necessity. The principles thereof have been culled out in the following terms in paras 28 and 29 of the pronouncement which shed valuable light on the issue under examination in the present case and read as follows:-
"29. A dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and therefore not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinise all the relevant attendant circumstances (see Tapinder Singh v. State of Punjab, 1970 CriLJ 1415). One of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the court finds that the capacity of the maker of the statement to narrate the facts was impaired or the court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it. In Bhagwan Das v. State of Rajasthan (1957) 1 SCR 854, the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the finding of the learned Sessions Judge held the dying declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kako Singh @ Surender Singh v. State of M.P. 1982 CriLJ 986, the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In Darshan Singh v. State of Punjab 1983 CriLj 985, this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh v. State of Punjab 1981 CriLJ 998, the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present."
26. In the pronouncement in the case of "Nallapati Sivaiah Vs. Sub Divisional Officer, Guntur, Andhra Pradesh", reported as (2007) 15 SCC 465 the Supreme Court ruled thus:-
"28. In K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] the Court having noticed the evidence of PW 20 therein who conducted the post-mortem that there were as many as 48 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries, came to the conclusion that in view of those serious injuries it was difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. It was also a case where the Magistrate did not put a direct question to the injured whether he was capable mentally to make any statement. In the circumstances this Court came to the conclusion that the Magistrate committed a serious irregularity in "not putting a direct question to the injured whether he was capable mentally to make any statement". It has been observed that even though the deceased might have been conscious in the strict sense of the term, "there must be reliable evidence to show, in view of his intense suffering and serious injuries, that he was in a fit state of mind to make a statement regarding the occurrence".
The certificate issued by the doctor that the deceased was in a fit state of mind to make statement by itself would not be sufficient to dispel the doubts created by the circumstances and particularly the omission by the Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured.
xxxxxxx"
27. Reverting back to the facts of the present case, statement of victim/deceased recorded by Police under Section 161 of Cr.P.C. immediately before her death can be considered as dying declaration. In the present case, the incident occurred at 11:00 PM, F.I.R. was recorded at 2:30 AM and thereafter, the injured was taken to District Hospital, Sultanpur. The delay of three and a half hours in lodging F.I.R. cannot be said to be inordinate delay and thus, this submission of the appellant does not hold any water.
28. The deceased Smt. Shivkali was medically examined by P.W.-3, Dr. A.P. Misra in District Hospital, Sultanpur on 15.05.1996 at 05:00 AM and found following injuries:-
"1. Incised wound L shaped 6 cm x 3 cm x 0.2 cm on the scalp mid line 6 cm above the eyebrow. Wound is bone deep. Moy is clear cut blooding stopped.
2. I.W. 3 cm x 0.2 cm above the left eyebrow on the forehead left side muscle deep. Blooding stopped Moy is clear cut.
3. I.W. 1.5 cm x 0.1 cm cut on the forehead right side 2 cm above the eyebrow. Muscle deep. Blooding stopped.
4. Incised Wound 10 cm x 2 cm on the abdomen in the epigastrium, depth could not be measured blood stopped externally.
5. Stabs wound 1 cm x 0.5 cm on the abdomen 2 cm away from navel depth could not be measured, omentum coming out."
Doctor opined that injuries No.1 to 5 are caused by sharp and cutting edged object. Injury No.1, 4 and 5 were kept in observation and x-ray of skull, abdomen was advised; rest all injuries are simple. In the MLC, it is mentioned that the patient was in shock and was admitted in hospital. Later on, Smt. Shivkali died at about 09:00 AM on 15.05.1996.
29. As regards, the delay in sending the copy of F.I.R. to the Senior Officer, it is well settled law that mere delay in discharge of the F.I.R., is not a circumstance which can throw out the prosecution case in its entirety. In this regard, reliance can be placed on judgment in the case of 'Pala Singh and another vs. State of Punjab', (1972) 2 SCC 640 and in the case of 'Sarwan Singh and others vs. State of Punjab', (1976) 4 SCC 369. Though, there is a delay in sending copy of F.I.R. to senior officers, however, in view of the law laid down in the aforesaid judgments, mere delay in sending copy of F.I.R. do not entitle the appellant a benefit of doubt.
30. So far as non-examination of prosecution witness Murali is concerned, it may be mentioned that it has come in the testimony of Chottai (PW-2) that Murali is not traceable. Hence, non-examination of Murali is of no consequence.
31. Further, it is true that the recovery of kulhadi (axe) is not admissible under Section 27 of the Indian Evidence Act because the kulhadi was not recovered at the instance of the appellant/accused. In this case, kulhadi was recovered from the spot on 15.05.1996 and the same was seized vide seizure memo Ex. KA-6. The appellant was not arrested at the spot and rather he surrendered on 30.05.1996 and was remanded to judicial custody by Ist Additional Chief Judicial Magistrate. Moreover the kulhadi was not shown to the Doctor who conducted the autopsy on the body of the deceased. However, other circumstantial evidences have to be considered for extending the benefit of doubt, if any, to the appellant/accused. In the present case, it is clear that the cut injuries could be by axe. The fact that the weapon was neither shown to the doctor nor was shown to the appellant during cross-examination is not of much consequence as there is clear medical evidence regarding the injury being caused by knife, axe and battle axe.
32. Another submission made by learned amicus curiae for the appellant is that PW-1, Ram Bahadur Yadav was having an evil eye on the deceased, Smt. Shivkali (bhabhi of the accused) and the appellant used to oppose the same; on the date of incident, Ram Bahadur Yadav had visited the house of deceased and wanted to commit rape which was opposed by her and, therefore, PW-1, Ram Bahadur Yadav committed murder of the deceased, Smt. Shivkali.
33. In case version of the appellant is believed that Ram Bahadur Yadav was having an evil eye of the deceased and on the date of incident he visited the house of the deceased to rape her, it is unbelievable that a person visiting the house of victim with an intention to rape her with carry an axe with him. Even if, he is carrying it, we are unable to apprehend as to how the fact of intention of Ram Bahadur Yadav of committing rape upon the deceased came into the knowledge of the appellant. Moreover, as per MLC Ram Bahadur Yadav also received injuries on her body. It is also worth-mentioning here that the deceased named the appellant in the F.I.R. which after her death is also considered as her dying declaration. Thus, in case it was Ram Bahadur Yadav to went to commit rape upon her, there is no reason for the deceased to falsely implicate the appellant by naming him in her statement under Section 161 of Cr.P.C. The appellant has also failed to show any reason as to why Ram Bahadur Yadav (PW-1) or the Investigating Officer would have falsely implicated the appellant as there is no previous enmity between them. Also, onus to prove the defence was upon the appellant which she has failed to discharge despite opportunity being granted.
34. Thus, in the facts and circumstances of the case, the present appeal is devoid of any merit, same deserves to be dismissed and the same is hereby dismissed. The fees of Sri Rajesh Kumar Dwivedi, learned amicus curiae is fixed at Rs.10,000/- (rupees ten thousand only).
35. The trial court record along with copy of this judgment be sent back forthwith.
36. A copy of this judgment be also sent to the appellant through Superintendent Jail concerned.
(Mohd. Faiz Alam Khan) (Ved Prakash Vaish)
Judge Judge
Order Date :- 07th Nov., 2019
cks/-