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Madhya Pradesh High Court · body

2000 DIGILAW 1196 (MP)

Kailash v. State of M. P.

2000-11-06

C.K.PRASAD, USHA SHUKLA

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Appellant being aggrieved by his conviction for offence under Section 302 of the Indian Penal Code and sentence of life imprisonment by judgment dated 2nd January, 1989, passed by the Third Additional Sessions Judge, in Sessions Trial No. 280/87, has preferred this appeal. According to the prosecution on 15.2.1987 while PW 7 Constable Radhekrishna was returning to the Police Station Kotwali after the petrolling duty, he found Gorelal in an injured condition. On enquiry Gorelal stated to this Constable that he has been assaulted by appellant by knife. According to the prosecution, this Constable came to the Police Station and brought it to the notice of the Inspector of the Control Room. Thereafter, Gorelal was taken to the hospital in a Police vehicle. At the hospital, PW 8 R.K. Gujar came, where he has recorded the report given by Gorelal as Dehati Nalishi (Ex. P/12). According to the Dehati Nalishi. Kailash Soni i.e. the appellant had illicit relationship with his sister-in-law and he has objected to his visit at his place and as such the appellant was enimical to him. According to the Dehati Nalishi, while he was going to collect key from the proprietor of hotel Mukundi Maharaj in the morning, he met the appellant armed with knife in a lane near the house of one Dubey. Appellant assaulted him by knife on account of which he sustained injuries on his stomach, leg and back. According to the Dehati Nalishi in order to save himself he attempted to catch hold of the knife and in this attempt, he has sustained injuries on his right palm and thumb. On the basis of the aforesaid Dehati Nalishi, a first information report under Section 307 of the Indian Penal Code was registered against the appellant. Injured Gorelal was treated by PW 11 Praful Kumar Dhagat. The injured was required to undergo surgery and as such his consent was obtained in the bed-head ticket (Ex. P/23) in which the injured has put his left thumb impression. However, the injured succumbed to the injuries and died the same day. Thereafter, post-mortem was conducted on his person by PW 12 Dr. R.K. Shastri who found six injuries on his person. Police after investigation submitted charge-sheet against the appellant and ultimately the case was committed to the Court of Session for trial. However, the injured succumbed to the injuries and died the same day. Thereafter, post-mortem was conducted on his person by PW 12 Dr. R.K. Shastri who found six injuries on his person. Police after investigation submitted charge-sheet against the appellant and ultimately the case was committed to the Court of Session for trial. Appellant denied to have committed any offence and his plea is that he has been falsely implicated in the case. In order to sustain conviction, prosecution has altogether examined 12 witnesses. One defence witness has also been examined. As stated earlier, there is no eye witness to the occurrence and the prosecution has sought conviction of the appellant on the basis of the dying declaration (Dehati Nalishi) and oral dying declaration given by the deceased before PW 7. Mr. S.L. Kochar appears on behalf of the appellant. Mr. Gangrade P.L. appears on behalf of the State. Mr. Kochar appearing on behalf of the appellant submits that it would be unsafe to base conviction of the appellant on the basis of the dying declaration (Dehati Nalishi) and oral dying declaration allegedly given by the deceased before PW 7 Constable Radhe Krishna. Mr. Gangrade, however, appearing on behalf of the State submits that the statement of the deceased which has been earlier recorded as a Dehati Nalishi, on account of his death can be treated as a dying declaration and the said dying declaration inspires confidence and as such it is a fit case in which the conviction and sentence of the appellant is fit to be maintained. He further submits that not only the dying declaration aforesaid, there is dying declaration of the deceased in presence of PW 7 Radhe Krishna and as such the order of conviction and sentence is not fit to be interfered with in appeal. It is relevant here to state that the deceased has given report to PW 8 R.K. Gujar and he has stated in his evidence that as the deceased has sustained injuries on his right hand and thumb, he has taken the impression on the Dehati Nalishi. It is further relevant here to state that PW 11 Dr. Praful Kumar Dhagat is the surgical specialist and before resorting to the surgical interference, he has obtained the consent of the deceased on the bed-head ticket (Ex. P/23) and in token thereof his left thumb impression has been obtained. It is further relevant here to state that PW 11 Dr. Praful Kumar Dhagat is the surgical specialist and before resorting to the surgical interference, he has obtained the consent of the deceased on the bed-head ticket (Ex. P/23) and in token thereof his left thumb impression has been obtained. Appellant has examined DW 1 Dr. Devendra Mukhariya and he has stated that the impressions found on the Dehati Nalishi and the bed-head ticket are not of the same person. According to the prosecution itself, the Dehati Nalishi as also the bed-head ticket contain the left thumb impression of the deceased. While giving his opinion. DW 1 Dr. Mukhariya has assigned reasons. We do not find any reason to disbelieve his evidence. That being so, the impressions on the Dehati Nalishi and the bed-head ticket are not of one and the same person. It creates doubt as to whether Dehati Nalishi contains the thumb impression of the deceased on the basis of which, prosecution seeks conviction of the appellant. In such a state of evidence, we are of the opinion that the appellant is entitled to be given the benefit of doubt. As stated earlier, the prosecution has sought conviction of the appellant on the basis of the oral dying declaration given by the deceased before PW 7 Radhe Krishna. This witness has stated in his evidence that when he met the deceased, he stated to him that it was the appellant who assaulted him and thereafter became unconcious. This witness has further stated that he has taken the deceased to the hospital along with Head Constable Bhim Sen in a Police vehicle. However, the doctor who has admitted the deceased in the hospital has stated that he was brought by the Constable B.S. Thakur. We are of the opinion that in such a state of evidence it would be unsafe to sustain the conviction of the appellant. In the result, the appeal is allowed. Judgment of conviction and sentence is set aside. Appellant is in jail. He shall be set at liberty forthwith unless required in any other case.