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Madhya Pradesh High Court · body

2000 DIGILAW 1312 (MP)

Rajkumar v. State of M. P.

2000-12-07

DEEPAK VERMA, N.K.JAIN

body2000
JUDGMENT Jain, J. -- 1. Appellants - Rajkumar, Dilip and Bhim Singh - are aggrieved by the judgment dated 10.1.1997, rendered in ST No. 133/1993, by I Addl. Sessions Judge, Dhar, convicting them u/s 302/34 of IPC and sentencing them each to undergo imprisonment for life. 2. Briefly stated the case of the prosecution at the trial was that on 31.12.1992, around 9.30 to 10.00 O'clock in the night, deceased Padamsingh accompanied by his brother Vijay Singh (PW 1) was on his way from his father's house at Kumhar Gadha, Dhar, to his house at Nogaon Dhar, when accused-appellants in Bhoi Mohalla, attacked him by means of sword, Dharia and Pharsa. He was severely injured and fell down in a nearby drainage. An anonymous phone call was received at PS Dhar about the incident and whereupon the police reached the spot, shifted Padamsingh to the local Civil Hospital, where FIR (Ex. P-11) was recorded at his instance. However, the deceased succumbed to his injuries the next day (1.1.1993). The police registered a crime u/s 302/34 of IPC, conducted inquest u/s 174 CrPC, prepared spot map, got the autopsy of the body of the deceased performed, arrested the accused-appellants, recovered arms allegedly used by them in the incident and after other usual investigation, charge sheeted the appellants for trial which ended into their conviction and sentence as aforesaid. 3. We have heard Shri Jaisingh, learned counsel for appellants and Shri G. Desai, Dy. AG for respondent-State. 4. There is no dispute that deceased Padamsingh was murdered in the early hours of the night of 31st December, 1992. In fact, that part of the prosecution case is not controverted by the appellants. The dispute centres around the identity of the appellants as assassins of the deceased. 5. This takes us to the merits of the case. Prosecution case is based mainly on the FIR (Ex. P-11) allegedly lodged by the deceased himself and treated as his dying declaration; and the ocular evidence of Vijaysingh (PW 1), the brother of the deceased, who testified that at the relevant time he accompanied his deceased brother who was attacked by the appellants by means of sword, Dharia and Pharsa. Shri J aisingh, learned counsel for the appellants has strongly criticised this witness Vijaysingh and contended that he told lies in the witness box. FIR (Ex. Shri J aisingh, learned counsel for the appellants has strongly criticised this witness Vijaysingh and contended that he told lies in the witness box. FIR (Ex. P-11) was also attacked severely and it was submitted that this piece of evidence was equally untrustworthy. 6. Taking the FIR (Ex. P-11) first, it may be noted at the outset that normally a FIR is not a substantive piece of evidence and its evidentiary value is only of corroborative nature. However, in the instant case, it has been treated as dying declaration of the deceased relied upon heavily by the prosecution as also by the trial Court as substantive piece of evidence to hold the appellants guilty for the said murder. Legally, such a report by a deceased person can be relied upon, even without corroboration, as a substantive evidence u/s 32 of the Evidence Act, of the cause of death of its maker. However, the legal position remains unaltered that such a dying declaration should be scrutinised very carefully, keeping in view the attending circumstances and can be acted upon only if the Court is satisfied that it was wholly true being free from any kind of doubt. 7. Inspector Shivraj Singh (PW 7) has proved this report Ex. P-11, which he stated, was recorded by him at District hospital, Dhar, where the deceased was brought for treatment after being seriously injured in the incident. He explained that since the deceased was unable to sign this report because of his injuries, his thumb impression was obtained on it. We have very carefully examined this document Ex. P-11 and we find that it is not free from reasonable doubts. The first and most important suspicious circumstance is the timing of recording of this report. As per this report, it was recorded 9.50 p.m. in the hospital. The incident is said to have taken place around 9.30 to 10.00 O'clock in the night. As per Rojnamcha entries of PS Dhar (vide Exs. The first and most important suspicious circumstance is the timing of recording of this report. As per this report, it was recorded 9.50 p.m. in the hospital. The incident is said to have taken place around 9.30 to 10.00 O'clock in the night. As per Rojnamcha entries of PS Dhar (vide Exs. P-16, 17 and 18) which were got exhibited in evidence during hearing of this appeal, the information regarding the incident in question was first received through an anonymous phone call at Police Station, Dhar, at 9.50 p.m. The Police party which did not include Inspector Shivraj Singh (who was reportedly out in the town) left for the spot about a Kilometre away, saw the deceased lying severely injured in a drainage, shifted him to the hospital, informed the Inspector on the wireless set and it was then that Inspector Shivraj Singh reached the hospital and could record the report Ex. P-11 at the instance of the deceased. Naturally all these would take sometime and it was not only improbable but impossible to record this report Ex. P-11 at 9.50 p.m. when as per the Rojnamcha reports above, the police was still at the police station and the Inspector in the town. It is patent, therefore, that this report was ante-timed rendering it a suspicious piece of document. 8. Yet another suspicious circumstances no less important is the fact that this report is recorded in the register of FIR kept at the Police Station and which is not supposed to be taken out of the Police Station. Normal practice is that when any such report is required to be recorded outside the Police Station, it is recorded on a plane paper as 'Dehati Nalishi' which later on is entered in the register of FIR as also in the Rojnamcha of the Police Station. It would not be, therefore, unreasonable to infer that in fact this report Ex. P-11 was prepared subsequently at the Police Station itself and probably that was the reason as to why signature of the informant deceased could not be obtained on it. This is reinforced by the MLC report Ex. P-1 recorded and proved by Dr. B.R. Upadhyay (PW 3) at 10.50 p.m. It appears that the deceased was brought to Hospital around 10.50 p.m. and there was thus no occasion to record the FIR (Ex. P-11) at 9.50 pm. This is reinforced by the MLC report Ex. P-1 recorded and proved by Dr. B.R. Upadhyay (PW 3) at 10.50 p.m. It appears that the deceased was brought to Hospital around 10.50 p.m. and there was thus no occasion to record the FIR (Ex. P-11) at 9.50 pm. The deceased had no injury on his upper limbs. His injuries were confined to the head and the lower limbs and as per statement of Dr. Upadhyay (PW 3) he was wholly conscious when he was first examined by him at 10.50 p.m. If that was so, there was no reason why signature of the deceased (who as per his brother's testimony, was semi-literate), could not be obtained on Ex. P-11. This leads us to believe that in fact this report Ex. P-11 was prepared after the death of the deceased or at least after he had gone in coma, thus making it impossible for the police to obtain his signature. 9. It is well settled that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method [see: Dalip Singh, AIR 1979 SC 1173 ]. In the instant case, as per prosecution's own showing the deceased was wholly conscious when he was brought to hospital and examined by the Doctor. He died sometime on the following day. The police thus had sufficient opportunity to get his dying declaration recorded by a Magistrate or at least by a Doctor which could inspire more confidence. Not even any attestation was obtained from the treating Doctor on this document to show that the deceased was in senses while making this statement. No explanation has been furnished as to why better and more reliable method of recording of dying declaration was not taken recouse to. This again renders doubtful the dying declaration Ex. P-11 recorded by the police. 10. Lastly not the least, the text of this report/dying declaration Ex. P-11 again makes it suspicious about it having been actually made by the deceased. This again renders doubtful the dying declaration Ex. P-11 recorded by the police. 10. Lastly not the least, the text of this report/dying declaration Ex. P-11 again makes it suspicious about it having been actually made by the deceased. We find that it contains a very detailed and graphic narration of the entire account of the incident, starting from the motive, the minute test features of the assault including the individual acts committed by the appellants, presence of light on the spot, and also the presence of Vijaysingh the brother of the deceased. It also mentions that the deceased was brought to hospital by the Police with a further request to the police to take appropriate action against the assailants. This kind of narration was not expected from a dying person who had received head injury, brain deep and having in fact cut the brain itself. Such a dying declaration, as held in Moharsingh [ AIR 1981 SC 1578 ], smacks of concoction. 11. Coming to the evidence of Vijaysingh, we find that he is equally untrustworthy. His post-incident behaviour makes his very presence on the spot doubtful. He claims that he accompanied his deceased brother when the latter was assaulted by the appellants. Firstly, he had no reason to accompany the deceased who as per prosecution's own showing lived separately in a different locality from his father and brothers and had come only to take his meals with the family on that night. This witness Vijaysingh a young boy aged 18 years allowed his brother to be beaten up and quietly went away from the scene of occurrence. He did not even raised any cry or called out anyone from the vicinity, leave aside himself making any attempt to save his brother. He did not also return home to inform other family members about the incident and instead kept hiding for nearly two and a half hours before returning home to relate the incident to his brother Rajendra Singh (PW 2) and father Bhanwar Singh (PW 6). He did not inform the police either not even by telephone. Normal reaction of a relative like him would be to make all possible efforts to save the deceased or at least take him home or to hospital after the assault. He was at least expected to rush back home, inform other family members and also the police about the incident. Normal reaction of a relative like him would be to make all possible efforts to save the deceased or at least take him home or to hospital after the assault. He was at least expected to rush back home, inform other family members and also the police about the incident. It was difficult to treat his post-incident conduct in consonance with the normal human behaviour of a relative having seen his elder brother being assaulted by others. Human relationship cannot possibly have the same kind of reaction as has been depicted by Vijay Singh and it is on those score that learned counsel for appellants has strongly criticised his testimony and in our opinion rightly, branding the same as wholly untrustworthy. 12. Rajendra Singh (PW 2) and Bhanwar Singh (PW 6) have deposed that they were informed about the incident by Vijay Singh after about two and a half hours of his leaving the home with the deceased. They further stated that they were proceeding towards the spot when in the way they were informed by a police constable that the deceased has already been shifted to hospital. They then reached the hospital where Padamsingh was being treated by the Doctors. They further claimed that Padamsingh also related the incident to them naming the appellants as the assailants. Their evidence has been pressed in service by the prosecution as also by the Court below to corroborate the evidence of Vijay Singh. We are however afraid that having regard to the nature of evidence of Vijay Singh himself, no such corroboration can be sought from other evidence. Rajendra Singh in his cross-examination para 14, virtually resiled from his earlier police statement (Ex. D-2) and denied that Vijay Singh had told him anything about the incident. In fact, it is difficult to believe that Vijay Singh having witnessed the attack on his brother would take two hours to return home and narrate the incident to other family members. These two witnesses Rajendra Singh and Bhanwarsingh were examined by Police on 3.1.1993 i.e. after two days of the occurrence which again intrudes an element of suspicion in their testimony. 13. It is significant to read here the Rojnamcha report (Ex. P-18) recorded by Police at 11.00 p.m.. on their return to the Police Station after shifting the deceased to hospital. 13. It is significant to read here the Rojnamcha report (Ex. P-18) recorded by Police at 11.00 p.m.. on their return to the Police Station after shifting the deceased to hospital. From this report it is clear that when Police party reached the spot, the deceased was lying severely injured and all that he could disclose was his name Padam Singh. A normal and most probable query is the Police should have made to the deceased was about the identity of the assailants. His not disclosing instantly names of the assailants to the Police clearly, goes to show that either he was not in his senses or he did not identify the assailants. Neither of those Police officials who had gone to the spot has been examined in evidence. This entitles us to draw adverse inference against the prosecution that no disclosure was ever made by the deceased about the assailants. This cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. 14. From the foregoing discussion it, therefore, inevitably follows that the identity of the appellants as assassins of the deceased was not established beyond a reasonable doubt. In any case they were entitled to benefit of doubt and consequent acquittal. Their appeal thus succeeds and is allowed. Impugned conviction and sentence recorded against them are set-aside and they are acquitted. They be set at liberty forthwith, if not required in any other case.