Madhya Pradesh High Court
State Of Madhya Pradesh vs Nisar Ahmad on 1 November, 1996
Equivalent citations: 1997CRILJ3055
JUDGMENT Shacheendra Dwivedi, J.
1. In this appeal, the State has challenged the order of acquittal of respondent, of the charge Under Section 302, I.P.C.
2. According to the prosecution version, on 5-6-1984, the deceased had gone to a flour-mill in village Sabalgarh. While he was returning back, it was stated that he was assaulted by the respondent at about 3.00 p.m. Two injuries were caused on the abdominal part and one on the neck. The deceased was removed to Sabalgarh Hospital. The police on getting information, on telephone that there was some incident near the flour-mill, had reached the spot and when the injured was not found, the Sub-Inspector Dohre, the Investigating Officer, went to the Hospital. The deceased was fully conscious at that time. The report lodged by the deceased was taken down by Sub-Inspector Dohre (PW 8) as Dehati Nalishi and was sent to the Police-Station for kaimi. The accused was named in F.I.R.
3. The doctor on the examination of his injuries found his condition to be serious and, therefore, recorded his dying-declaration in question-answers form. The deceased had named the accused/respondent as his assailant in this dying-declaration. The deceased was tried to be treated at the hospital but when the doctors found that it was difficult to save him due to limited resources at that hospital, he was referred to J.A. Group of Hospitals, Gwalior. The deceased was brought to Gwalior. On examination of the deceased at J.A. Group of Hospitals, Gwalior, the doctor declared him dead. His body was taken back to the Sabalgarh and funeral was done.
4. On the same day, the accused-respondent was arrested by the police. From his possession a knife (which had the spring) was recovered from his possession. On the suspicion of the knife being bloodstained, it was duly sealed and sent for chemical examination. The knife was found to be stained with blood. After the due investigation, the police had filed the challan against the accused-respondent. The motive for the commission of offence was the alleged abusing by the deceased with the accused on the suspicion of accused's illicit relationship with the wife of the deceased's elder brother.
5. At the trial, the accused-respondent abjured the guilt and pleaded his total ignorance of the incident.
6. Eye-witnesses, examined by the prosecution, did not support its version. As such, the remaining available evidence and the circumstances of the case against the accused were (1) the dying declaration; (2) the recovery of the bloodstained knife from his possession and (3) the motive for the commission of offence.
7. The learned trial Court on the consideration of available evidence, acquitted the accused of the charge holding that out of the three written dying-declarations, i.e., (1) recorded as FIR (Ex. P/9) lodged by the deceased with the police at the hospital; (2) the dying-declaration (Ex. P/6) recorded by v Dr. K.C. Chopra (PW 4) and (3) the last dying-declaration (Ex. P-7) recorded by Tehsildar (Executive Magistrate), D.C. Shrivastava (not examined), the last dying declaration was reliable wherein the accused was not narned. In the F.I.R. (Ex. P/9) which was lodged by the deceased himself, he had named the accused-respondent with allegation of assault on him by knife. In the dying-declaration (Ex. P/6) which was recorded by Dr. K.C. Chopra (PW 4), the deceased had attributed to the accused-respondent, the causing of two injuries from the front and one from the back. It was also stated that in the preceding night at about 10.00 p.m., there was hot exchange of words and abuses, between him and the accused which provided the motive. But in the last dying-declaration (Ex. P/7) recorded by Tehsildar, the deceased is alleged to have stated that he did not remember as to who had inflicted the knife injuries to him. He even did not remember the place where he was assaulted.
8. The last dying-declaration recorded by Tehsildar was not proved by prosecution as the Tehsildar was not examined, but defence sought to rely upon the above dying-declaration as Dr. Mahore (PW9) had proved his signatures and also that of Tehsildar, thereon. But the doctor could not say anything about the contents of the document nor could state as to what was asked by the Naib Tehsildar from the deceased and also what was stated by deceased to Naib-Tehsildar. The learned trial Court on the reasoning that the deceased had steadily and clearly signed the last dying-declaration (Ex. P/7) and that it was recorded by the Tehsildar in the presence of doctor, found it to be more reliable and had, therefore, rejected the other two dying declarations; one being in the form of FIR (Ex. P/9) and the other (Ex. P/6) recorded by Dr. K.C. Chopra (PW4). By placing reliance on the dying declaration (Ex. P/7) recorded by Executive Magistarte, the accused respondent was acquitted of the charge. It was also found by the trial Court that the Investigating Officer failed to record in the rojnamcha, the information initially received by police on telephone, nor had recorded the statement of the informer. The only fact disclosed was that the information was given on telephone by one Mohan. The origin and the blood grouping on the knife was not established as it had disintegrated. The trial Court also found that eye-witnesses had turned hostile and other witnesses, namely; Mohan, the person who had informed the police on telephone and the mother of the deceased were not examined by the prosecution at the trial. Therefore, in the above circumstances acquitted the respondent of the charge.
9. It has beeh contended by the learned counsel for the appellant-State in this appeal that the learned trial Court acquitted the accused only on flimsy grounds. Although the eye-witnesses had turned hostile, yet the oral dying declaration which was proved by PW1 Ramesh Chand and the two other written dying-declarations i.e. one in the form of FIR and the other recorded by Dr. K.C. Chopra (PW4), had fully established the prosecution allegations against the accused beyond the shadow of reasonable doubt and that the dying-declaration (Ex. P/7) was of no use firstly because it was not recorded in question-answer form and secondly, it was not proved as to what was asked by the Magistrate from the deceased and what he had replied. Therefore, it is contended that the acquittal of the accused was not on valid reasonings and was bad in law. It was, as such prayed that the impugned order be set aside and the respondent-accused be convicted and sentenced for the offence punishable Under Section 302, I.P.C.
10. The present appeal has been preferred by the State against the order of acquittal of respondent. We are aware of our limitations while dealing with an appeal against acquittal.
11. Although Sections 378 and 386 of Cr. P.C. confer the full power on the High Court to appreciate and review at large, the evidence and reasonings upon which the acquittal was founded, and to reach to the conclusion whether the order of acquittal deserves reversal, yet this Court would be slow in disturbing the findings of facts if the view taken by the trial Court was also a plausible one. But if the reasons assigned by the trial Court are perverse and the acquittal is based on surmises, rather than on evidence and if the approach adopted by it was against all danons of reasonableness, as the evidence on record offered no scope for the acquittal of the accused, the order shall have to be reversed. The test would, therefore, be that interference with the order could be necessitated if the conclusion recorded by trial Court is such which would not have been possibly arrived by any Court, acting reasonably and judiciously on the consideration of evidence on record.
12. We proceed to examine the grounds of acquittal recorded by the learned trial Court in the light of the above test with reference to the evidence on record. No doubt that the prosecution had examined PW2 Ram Prakash, PW3 Ramesh Chandra S/o Ramcharan Lal and PW5 Bhoj Datt as eye-witnesses and they had not supported the prosecution version, but merely on that count the other evidence of the prosecution could not be rejected. If the prosecution succeeds in proving its case through other evidence and by the surrounding circumstances, the eye-witnesses turning hostile would not demolish the prosecution version nor it can be said that investigating officer had not acted impartially in investigating the offence and collecting the evidence. If the eye-witnesses turn hostile the investigating officer cannot be held liable. The trial Court exceeded its power perversely in this regard in condemning the investigating officer.
13. The other ground assigned by learned trial Court for the acquittal of the accused-respondent is that the prosecution had failed to examine Mohan, who had reported to police on telephone about the quarrel near the flour mill and the mother of deceased to whom the name of assailant was disclosed by the deceased. Further that the information given by him on telephone was not recorded by the police in Rojnamcha. The finding in this regard is wholly perverse. The police had recorucd the information in the Rojnamcha which was exibited as Ex D-1. But the learned trial Court held against the record in para 11 of the impugned judgment that the information received on telephone was not recorded by police in Rojnamcha and with such perverse finding, the appreciation of evidence was made with the wrong approach. It is apparent from the observation made by the trial Court that by not recording the information in Rojnamcha, the investigating officer had caused serious prejudice to the accused. The learned trial Court for this reason observed that investigation could be believed to be only one sided and partial. With the perverse approach, the trial Court had appreciated the prosecution evidence. The information (Ex. D1) does not describe that any injury was received by victim as such cannot be taken to disclose the commission of a cognizable offence and was rightly not treated as FIR. Therefore, the examination of Mohan cannot lead to any adverse information against the prosecution.
14. Further, the prosecution is not required to duplicate the evidence. PW1 Ramesh Chandra alias Rameshwar Dayal was examined by the prosecution. He had proved the oral dying declaration made by the deceased, of naming the accused-respondent as assailant soon after the incident. Therefore, the non-examination of the mother of deceased is also of no consequence to the accused-respondent. The learned trial Court has wrongly brushed aside the evidence of Ramesh Chandra (PW1) merely because he is a relation of the deceased and, therefore, an interested witness and further because the dying-declaration (Ex. P/ 7) does not described the name of the assailant.
15. The last, and the most strong ground assigned on which the trial Court has based its order of acquittal is to the effect that the dying declaration recorded by the Tehsildar (Ex. P/7) does not disclose the name of the respondent as assailant. On that count the learned trial Court, as discussed above, has disbelieved the oral and also the two written dying declarations (Ex. P/6 and P/ 9) of the deceased. The learned trial Court found that the deceased had signed the other two dying declarations in hurry whereas his signatures on the dying declaration (Ex. P/7) recorded by Executive Magistrate (not examined), were not put in hurry. Writing on Ex. P/7 was more stable. Secondly, that it was recorded by the Executive Magistrate, who was more truthful witness than the doctor and thirdly, because on the other dying declarations there was no witness whereas on Ex. P7 acertificate of doctorB.L. Mahore (PW9) was appended thereto, certifying that the deceased was in a fit condition to make the statement.
16. We shall take the above reasonings one by one. There appears to be no basis for the first reasoning that the signatures of the deceased on the dying declaration (Ex. P/7) were stable than other signatures on the FIR (Ex. P/9) and the dying declaration (Ex. P/6) recorded by Dr. Chopra (PW4). The signatures on all the dying declarations are similar. Whereas on the contrary, the very narration in the dying declaration (Ex. P/7) indicates that the deceased was not in a fit mental state. The doctor had certified about his fit mental condition at 4.45 p.m. i.e. after the recording of his version. In the figures showing the time, there is over-writing on the figures. It appears that earlier written figure '7' was later on made '4'.
17. Now admittedly the incident was in a small town of Sabalgarh where people know each other. It occurred in the broad day light. The deceased was assaulted by knife from the front. As such, the deceased had ample opportunity of seeing and identifying the assailant and the spot which he had described in his earlier dying declarations. But in the dying declaration (Ex. P/7) the deceased had stated that he did not remember as to at what place the knife injury was caused to him. It was further stated that he also did not remember as to who had caused the injury. Curiously in this statement, the deceased had not stated that he did not know the assailant or that he had not known the place of assault, but at the time of statement Ex. P/7, he could not remember or recollect the same.
18. The, very expression that he did not' remember as to at what place and by whom the injury was caused to him, only indicates that the injured was loosing memory, even if he was conscious, because of the excessive bleeding from the injuries. The cause of death was also the excessive bleeding. The quick loss of blood may dim the memory of an injured or it may weakern and confuse his intellectual power.
19. In such circumstances, the learned trial Court erred in believing the dying declaration (Ex. P/7) recorded by the Executive Magistrate and in discarding the other dying declarations Ex. P/6 and Ex. P/9. Those dying declarations were recorded earlier in point of time when the mental powers of the deceased were not affected and his capacity to remember was not impaired. The condition of the injured was in the process of deterioration.
20. The details given in the other dying declaration which came on record as FIR lodged by the deceased go to show that at that time his mental condition was better. In the later dying-declaration (Ex. P/6) recorded by Dr. Chopra (PW4), the version of deceased had come in reply to the questions put by the doctor. By itself the dying declaration did not have much details.This only indicates that by then his condition had somewhat deteriorated and in that process, the dying declaration recorded by the Executive Magistrate was the last, which shows that his condition had worsen and he was confused. The doctor had also to refer the patient to the J. A.Group of Hospitals, Gwalior, since the condition of the injured had deteriorated.
21. The observations made by the trial Court that Dr. Chopra (PW4) had not disclosed his recording of dying declaration to other Dr. B.L. Mahor (PW7) is wholly out of the, place. The fact of the recording of dying declaration is itself mentioned in the injury report Ex. P/5 written at 4.25 p.m. The dying declaration was recorded earlier to it. The recording of the other dying declaration Ex. P/7 was not in the knowledge of Dr. Chopra. Therefore, no infirmity could be found in dying declaration Ex. P/6. There is also no allegation of any ill-will against Dr. Chopra (PW/4).
22. In view of the above circumstances, the dying declaration (Ex. P/7) could not be said to be more reliable than the other dying declarations (Ex. P/6 & Ex. P/9), as found by the trial Court.
23. The oral dying declaration proved by Ramesh Chandra (PW1) could also not be discarded on account of the witness being a relation of the deceased, not on the basis of minor contradictions. The oral and the documentary dying declarations (Ex. P/6 & P/9) are consistent in material particulars and have to be preferred and relied, than the dying declaration (Ex. P/7). The dying declaration Ex. P/7 is also not in the question-answer form. Scribe thereof was also not examined. Doctor has tried to prove the dying declaration, but he had not heard the statement of deceased which he made to scribe.
24. The injured was admittedly examined by Dr. Chopra. He had recorded his dying declaration (Ex. P/6), before the examination of injuries, as the condition of the patient was serious. This fact is reflected from injury certificate (Ex. P/5). The brief made by the injured soon after the incident, when he was fully conscious and composed, has to be preferred and can be acted upon. When the dying declaration is made under a solemn sense of impending death and when circumstances are such where the deceased is not likely to be mistaken, then it can be relied for baling the conviction. Dr. Chopra does not appear to have knowledge Of the recording of later dying declaration (Ex. P/7) and cannot be blamed for not informing that he had already recorded the dying declaration, but the recording of Ex. P/6 is amply disclosed from the injury certificate Ex. P/5.
25. In the instant case, the documentary dying declarations (Ex. P/6) and (Ex. P/9) are also supported by oral dying declaration, proved by Ramesh Chandra (PW1) and by the other circumstances such as the early arrest of accused/ respondent with the weapon of offence i.e. the knife, the presence of blood on the knife, the medical corroboration of stated injuries and of corresponding cut in the banyan of deceased. The doctor also proved that the injuries on the person of deceased and the corresponding cut in the banyan could be caused by the seized knife. The version of Dr. Chopra (PW4) could not be discarded. There is absolutely no allegation against him, nor any motive is alleged against him to implicate the respondent. Therefore, from the evidence and circumstances on record, the only possible view which can be drawn by any Court acting reasonably and judiciously is of the commission of the offence by accused/respondent alone and by none-else.
26. On the foregoing discussions, we are of the view that the learned trial Court erred in acquitting the accused by discarding the prosecution evidence and the circumstances of the case on record, by illegally placing reliance on the dying declaration (Ex. P/7). In our view the dying declaration (Ex. P/7) only reflects the impaired memory of the deceased and as such does not make the prosecution version unreliable.
27. The appeal is, therefore, allowed. The impugned judgment is reversed. The accused-respondent is held guilty for the offence punishable Under Section 302, I.P.C. and is sentenced to suffer imprisonment for life. The respondent is in jail since he was apprehended after 7 years of the admission of this appeal. The period for which the accused-appellanthasremainedincustody during investigation, during trial and during the pendency of this appeal shall be adjusted towards his sentence.
28. Ordered accordingly.