Madhya Pradesh High Court
Lattu vs State Of Madhya Pradesh on 21 January, 2004
Equivalent citations: 2004(2)MPHT392
Author: Uma Nath Singh
Bench: Uma Nath Singh
JUDGMENT S.L. Kochar, J.
1. This appeal has been preferred by the appellant against the judgment dated 25-7-1995 rendered in Sessions Trial No. 29/93 by the learned First Addl. Sessions Judge, Khargone, thereby by finding the appellant guilty of the offence under Section 302, Indian Penal Code, convicted and sentenced him to undergo imprisonment for life.
2. The factual matrix giving rise to this appeal, in short is that on 13-11-92 in the night at 9.00 - 9.30 P.M. near Panchayat Building of Village Panali, the deceased Shyama asked the appellant as to why he came over there because he was misbehaving with the girls. On account of this, there was a quarrel between the deceased Shyama and the appellant. The appellant assaulted the deceased Shyama by kicks and fists as well as by knife. On 14-11-92 in the morning at 5.00 - 5.30 A.M. Tutibai, mother of the deceased raised alarm on which Mangat Bhilal (P.W. 2) went behind his house and on Kaldi way found the dead body of the deceased having blood on the chest. Some more persons were also present near the dead body. Report of Merg No. 28/92 was written. In this Merg Report, the name of the assailant was written as 'unknown'. During Merg enquiry map (Ex. P-4) was prepared. Notice (Ex. P-2) was given to the witnesses for inquest of the dead-body. The inquest report is Ex. P-3. In this inquest report, the name of the assailant was not mentioned, but therein it was mentioned that the deceased was assaulted by 'unknown' person. From the spot, vide Ex. P-5, blood-stained earth and controlled earth were seized and offence was registered on 14-11-92 vide First Information Report (Ex. P-19). The dead body was sent for post-mortem examination. Dr. K.S. Thakur (P.W. 1) performed the autopsy on the dead body and gave post-mortem report (Ex. P-1). In the First Information Report also, the name of the assailant was not mentioned and nobody came forward till that time to disclose about the assailant or to give any clue regarding the evidence of murder of Shyama Chowkidar.
3. Thereafter, on 15-11-92, Shivram (P.W. 10) was examined as a witness of oral dying-declaration and Pandhari (P.W. 15) and Tulsiram (P.W.14) were examined as witnesses of extra-judicial confession made by the appellant before them. Narayan (P.W. 13) was examined for the evidence of quarrel taking place between the appellant and the deceased in the evening of 13-11-92. The appellant was arrested on 16-11-92. On his information memo (Ex. P-7), the knife was seized, vide seizure memo (Ex. P-8). His blood-stained clothes were also seized vide Ex. P-9 and Ex. P-10. This seizure was effected before Budhan (P.W. 4) and Chandu (P.W. 16). The knife and the clothes were sent to Forensic Science Laboratory and according to its report (Ex. P-20), simple blood was present on these articles, but the same was not confirmed as human blood by the Serological Report vide Ex. P-21. After the investigation, charge-sheet was filed before the Court.
4. The learned Trial Court framed the charge against the appellant under Section 302 of Indian Penal Code. The appellant denied his guilt. According to him he was falsely implicated. Thereafter, he was put to trial. During trial, the prosecution examined as many as 17 witnesses. After hearing both the parties, the Trial Court finding the appellant guilty of the offence, convicted and sentenced him as noted above.
5. We have heard Shri P.K. Saxena, learned Senior Counsel with Shri Rawka for the appellant and Shri Girish Desai, learned Dy. Advocate General for the State and gone through the entire record carefully.
6. At the out-set, it may be noted that the- cause of death was haemorrhage with shock due to cardiac haemorrhage as a result of injury to vital organ, i.e., heart. The autopsy report issued by Dr. Thakur (P.W. 1) is Ex. P-1. According to Dr. Thakur, this injury was caused by sharp and pointed object. Thus, it is clear that the deceased met a homicidal death. Even otherwise, the defence has also not disputed the homicidal death of the deceased.
7. The submission of the learned Counsel for the appellant is that the conviction is based on the statement of Shivram (P.W. 10), a witness for oral dying-declaration and extra-judicial confession said to have been made by the appellant before Pandhari (P.W. 15) and the statement of Narayan (P.W. 13) who was the witness of earlier quarrel between the appellant and the deceased and then the incident of murder.
8. Learned Trial Court has also relied on the recovery of knife, blood-stained clothes and the Forensic Science Laboratory Report. Learned Counsel has vehemently criticised the evidence of the aforesaid witnesses. According to him, the incident had occurred on 13-11-92 and Shivram (P.W. 10) stated that in the night at 8.00 - 9.30 P.M. he was passing through the road and he saw the deceased lying on the road. He asked the deceased as to what had happened whereupon he (the deceased) disclosed before this that he was assaulted by the appellant by knife. Thereafter, he came to the shop of one Ashok and disclosed the above facts before Narayan and Ashok. Ashok (P.W. 8) and Narayan (P.W. 13) have not supported the prosecution case about disclosure before them by Shivram (P.W. 10) regarding oral dying-declaration and extra-judicial confession. Learned Counsel has also submitted that all the aforesaid witnesses of oral dying-declaration and extra-judicial confession should not have been relied upon by the Trial Court because of their unnatural conduct. Shivram (P.W. 10), in the night, after knowing the name of the assailant from the mouth of the deceased about causing injury to him, did not care to go to the house of the deceased or even did not provide him any medical aid either on the spot or taken him to any nearby hospital.
9. On the next day, i.e., on 14-11-92 early in the morning, Merg Intimation Report (Ex. P-17) was written about the death of deceased. Thereafter, the police party reached in the village in the early morning and prepared the inquest vide Ex. P- 3 wherein Mangat (P.W. 2), Pandhari (P.W. 15), Sardar Singh (P.W. 3) were the witnesses, but they did not disclose anything before the police regarding the name of the assailant. Shivram (P.W. 10) was also with the police as stated by him in his statement Para 3 wherein he has stated that on the next day in the morning he did not disclose anything before any body regarding the night incident. He was not able to give the date of his statement. He was present near the dead body when the police reached over there, but at that time also he did not disclose about the oral dying-declaration. His statement was recorded on 15-11-92 by Sub Inspector Anand Singh Waskle (P.W. 17). This witness and other witnesses Pandhari (P.W. 15), Narayan (P.W. 13), Ashok (P.W. 8), Tulsiram (P.W. 14) all were examined by the police on 15-11-92 and all of them have not disclosed before anybody about the evidence with regard to oral dying-declaration as well as extra- judicial confession, and even before the police though they were present in the village and also witnessing the investigation proceedings being conducted by the police. Some of the witnesses had witnessed the inquest.
10. Learned Counsel for the appellant has placed reliance on the recent law laid down by the Supreme Court on appreciation of dying-declaration in the case of P.V. Radhakrishna v. State of Karnataka (AIR 2003 SC 2859) and for extra-judicial confession he relied on a judgment passed in the case of Sandeep v. State of Haryana (AIR 2001 SC 1103).
11. On the other hand, learned Deputy Advocate General Shri Desai has submitted that the witnesses were rustic villagers and promptness could not be expected from them regarding disclosure about the incident. He supported the judgment of conviction passed by the learned Trial Court and placed reliance on the Supreme Court judgment in State of Rajasthan v. Rajaram [(2003) 8 SCC 180], wherein the Supreme Court has held that "uncorroborated evidence of extra-judicial confession can be relied upon for bringing home the guilty of the accused if the same is of sterling character and after rigorous examination of statement of witness if it is reliable". There is no dispute with regard to this legal position, but in the case on hand, the evidence of extra-judicial confession is not of sterling character and the witnesses can not be relied upon, for the reasons indicated above.
12. Having heard the learned Counsel for the parties and after perusing the entire evidence on record, as well as the judgment passed by the learned Trial Court, we are of the opinion that in view of the delay in disclosure by the witnesses regarding evidence of oral dying-declaration and extra-judicial confession coupled with the fact that all these witnesses have not given any explanation for not disclosing before anybody in the night on the date oh incident, i.e., 13-11-92 and next day i.e., 14-11-92 even after arrival of the police and all they were present in the company of the police, but they did not disclose anything before the Police.
13. Mangat (P.W. 2), Pandhari (P.W. 15) and Sardarsingh (P.W. 3) were the witnesses of inquest (Ex. P-3) and in the inquest, the name of the assailant was mentioned as "unknown". The Merg Intimation Report (Ex. P-17) is also not containing the name of the assailant which was prepared on the next day though the oral dying-declaration was made. According to Shivram (P.W. 10), between 8.30 to 9.00 P.M. on 13-11-92 and in the same night, extra-judicial confession was made by the appellant before Tulsiram (P.W. 14) who has turned hostile and before Pandhari (P.W. 15) who has supported the prosecution case, but did not disclose anything about extra-judicial confession on the next day, though he witnessed the inquest (Ex. P-3) and in the said inquest, the name of the assailant was not mentioned. Not only this, after preparation of Merg (Ex. P-17), inquest (Ex. P-3) the offence was registered on 14-11-92 vide Ex. P-19 in the night at 9.45 P.M., but in this First Information Report also the name of the assailant is not mentioned and it is mentioned that the assailant was "unknown". Nothing is mentioned about the oral dying-declaration by Shivram (P.W. 10) and extra-judicial confession by Pandhari (P.W. 15).
14. Shivram (P.W. 10) and Pandhari (P.W. 15) have also admitted in their Court statement that they were near the dead body. They were present when the police party came in the morning on 14-11-92. Other villagers were also present, but they did not disclose for the whole day to anybody about extra-judicial confession and oral dying-declaration. Pandhari (P.W. 15) has also stated that the police recorded his statement after one or two days of the incident and prior to recording of his statement by the police, he did not disclose about the extra-judicial confession before anybody and he has also not given any explanation or reason for not disclosing about the evidence of extra-judicial confession. This is highly abnormal conduct of both the witnesses Shivram (P.W. 10) and Pandhari (P.W. 15).
15. The Supreme Court in the judgment of Ramsai and Ors. v. State of Madhya Pradesh, reported in (AIR 1994 SC 464) discarded the testimony of witness of dying-declaration on the ground of his disclosure to the police after two days and for this delay the witness did not give any acceptable explanation. Similar is the situation in the present case. We can safely refer to the case of State of Orissa v. Mr. Brahmananda Nanda, reported in (AIR 1976 SC 2488). In this judgment, the Supreme Court has disbelieved the eye-witnesses' account because of her abnormal conduct in not disclosing about the incident before the police or anybody else for one and a half days from the time of witnessing the incident though the witness had ample opportunity to do so. The witness did not disclose even after arrival of the police party. In the present case also, the witnesses though present right from the time of Merg Report recorded on 14-11-92 in the morning, remained in the company of the police, but did not disclose about the dying-declaration or extra-judicial confession and their statements were recorded on 1541-92. They have also not given any sort of explanation for the same.
16. Therefore, in the light of foregoing evidence on record and the legal position regarding appreciation of evidence of witnesses, we are of the view that both the sets of evidence of prosecution could not be relied upon.
17. So far as placing reliance on the recovery of knife and bloodstained clothes on which simple blood was found according to FSL report (Ex. P-2), this evidence has no legal and evidentiary value because neither the human blood was found nor blood-group was tallying with the blood-group of the deceased. Therefore, this evidence is not of much consequence.
18. For the foregoing reasons, this appeal is allowed. The conviction of the appellant and the sentence recorded thereunder by the learned Trial Court are hereby set aside. The appellant is on bail. His bail and surety bonds shall stand discharged.