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2002 DIGILAW 1565 (RAJ)

Madhu S/o Deva v. The State of Rajasthan

2002-09-09

K.C.SHARMA, S.K.KESHOTE

body2002
JUDGMENT 1. - Having been felt dis-satisfied and aggrieved of the judgment and order dated 5.3.1998 of the Additional Sessions Judge, Kishangarh, District Ajmer in Sessions Case No. 19/1996, the accused-appellants have directed this appeal u/s. 374 of the Criminal Procedure Code, 1973. The accused-appellants under the impugned judgment and order were convicted by the trial Court for the offence u/s. 302 read with Section 34 IPC and each was sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine each of them was to further undergo six months rigorous imprisonment. 2. A criminal case u/ss. 302, 307, 325, 323, 452, 147, 148 & 149 IPC was registered at Police Station, Arai, District Ajmer on 20.3.1996 at 01.15 a.m. against the accused-appellants and Mst. Rami wife of accused, appellant No. 1 and other 5-6 persons on `parcha-bayan' Ex.P/29 of the deceased-Deva recorded on 19.3.1996 at 11.15 p.m. It was deposed in `parcha-bayan' Ex.P/29 that when the injured and his son Kishna were in their house, then his son accused-Madhu, appellant No. 1, Shravan son of Teeja and another son of Teeja suddenly attacked and belaboured them by use of lathies. Kishna died on spot and Deva died at the Hospital on the same day. 3. The police after making investigation submitted a challan against the accused-appellants including Smt. Rami and Smt. Jamna for the offence u/ss. 147, 148 & 302/149 IPC in the Court of concerned Judicial Magistrate. The learned Judicial Magistrate has taken cognizance of the offences u/ss. 147, 148 & 302/149 IPC and as the case was triable by the Sessions Court it was committed to the Court of Sessions Judge, Ajmer. The Sessions Judge, Ajmer transferred the case for trial and decision to the Court of Additional Sessions Judge, Kishangarh, Ajmer. 4. The accused-appellants were charged by the learned trial Court for the offence u/ss. 148, 302 and in the alternate, u/s. 302 r/w Section 149 IPC, under its order dated 5.3.1997. Accused-appellants denied the charges and prayed for trial. 5. The prosecution to prove its case examined as many as 26 witnesses and got exhibited 37 documents. The statements of the accused-appellants were recorded by the trial Court u/s. 313 Cr.P.C., 1973. They denied all the allegations made and stated that they are falsely implicated in the case. Accused-appellants denied the charges and prayed for trial. 5. The prosecution to prove its case examined as many as 26 witnesses and got exhibited 37 documents. The statements of the accused-appellants were recorded by the trial Court u/s. 313 Cr.P.C., 1973. They denied all the allegations made and stated that they are falsely implicated in the case. Tue accused-appellants in defence did not produce any ocular evidence. However, the statements of Bhanwari Devi, Soni, Lala, Kishna Ram, Hanuman and Bhura recorded by the police u/s. 161 Cr.P.C. were got exhibited and referred in defence. 6. After hearing the learned counsel for the accused-appellants and the public prosecutor and perusing the evidence which came on record, the learned trial Court under its impugned judgment and order convicted and sentenced the accused-appellants as afore-stated. Thus, this appeal before us. 7. Shri Balwada, learned counsel for the accused-appellants contended that there is delay in examining eye-witnesses by the Investigating Officer. It is a serious infirmity in the prosecution case. In support of this contention, Shri Balwada, learned counsel for the accused-appellants placed reliance on the decision of the Apex Court in the case of Ganesh Bhanwan Patel & Anr. v. State of Maharashtra, 1979 SCC (Criminal) page 1. 8. Second contention raised by Shri Balwada, learned counsel for the accused-appellant is that the dying declaration of deceased-Deva is wholly unreliable. Deceased-Deva named only accused-appellant No. 1 therein. 9. Third contention raised by Shri Balwada is that there are serious contradictions in the dying declaration and the statements of eye-witnesses. 10. It is next contended that there are contradictions in the statements of eye-witnesses. Lastly, it is urged that the recovery of lathi etc. are not supporting the prosecution case. 11. Shri Rathore, learned Public Prosecutor for the State on a question being put by the Court, has given out that Gopi whose reference came in the case is real brother of accused-appellant No. 1. He made reference to the statement of PW-8 Kanwari, the widow of deceased-Kishna. She admitted that Gopi is the brother of accused-appellant No. 1. Learned counsel for the accused- appellants do not dispute that Gopi is the brother of accused-appellant No. 1. 12. Shri Rathore, learned Public Prosecutor contended that from the ocular evidence of the prosecution and the dying declaration of deceased-Deva, prosecution has proved its case against the accused-appellants beyond reasonable doubt. Learned counsel for the accused- appellants do not dispute that Gopi is the brother of accused-appellant No. 1. 12. Shri Rathore, learned Public Prosecutor contended that from the ocular evidence of the prosecution and the dying declaration of deceased-Deva, prosecution has proved its case against the accused-appellants beyond reasonable doubt. He made reference to the injury report and post-mortem reports of deceased-Deva and Kishna and submitted that they also support the prosecution case. Reference has also been made to the report of Forensic Science Laboratory, Jaipur. In his submission, the investigation made by the police in this case may not be upto the mark, but only on this ground accused-appellants. may not be acquitted. 13. It is next contended that dying declaration of Deva is a reliable evidence to bring home the accused-appellants to the offences for which they are charged, more so where this dying declaration finds support from the statements of eye-witnesses PW-9 Lala Ram, PW-10 Soni, PW-12 Norat, PW-16 Kishna, PW-17 Hanuman, PW-18 Bhanwara and PW-26 Badri also. 14. Lastly, it is urged that mere delay made in recording statement of the eye-witnesses by the Investigating Officer as a rule, cannot be a ground to record the acquittal of the accused-appellants. 15. In rejoinder, Shri Balwada, learned counsel for the accused-appellants made reference to the decision of this Court in the case of Yusuf v. State of Rajasthan, 2002(2) Cr.L.R. (Raj.) 957. 16. We have given our thoughtful consideration to the rival contentions raised by the learned counsel for the accused-appellants and the public prosecutor, carefully gone through the ocular and documentary evidence produced by the prosecution and the judgment and order of the trial Court. 17. It is undisputed that on the bodies of deceased-Deva and Kishna there were as may as eight and 35 injuries respectively. 18. Having gone through the judgment of the trial Court in particular para Nos. 71, 72 & 73 thereof, we find that the recoveries of lathis etc. were not relied upon by it in favour of the prosecution. But we are unable to subscribe to and accept the contention raised by the learned counsel for the accused-appellants that on failure of prosecution to prove the recovery of weapons the entire prosecution case is to be disbelieved. Recoveries of weapons of offence is only a corroborative evidence. were not relied upon by it in favour of the prosecution. But we are unable to subscribe to and accept the contention raised by the learned counsel for the accused-appellants that on failure of prosecution to prove the recovery of weapons the entire prosecution case is to be disbelieved. Recoveries of weapons of offence is only a corroborative evidence. The trial Court has not relied upon this evidence but it is hardly a ground to acquit the accused-appellants of the charges for which they are booked, as prosecution case is proved by the direct evidence i.e. statements of the eye-witnesses. We are in agreement with the trial Court that in this case of double murder, the Investigating Officer has acted in highly negligent manner. In formations to effect the recovery of weapon of offences (lathies) were given by the accused-appellants to the Investigating Officer u/s. 27 of the Indian Evidence Act on 21.3.1996, but he has not bothered, cared and concerned to proceed to make recoveries thereof in pursuance thereof till 23rd of March, 1996. Not only this, on a question being put, the Investigating Officer could not explain as to which of the weapon marked HIJKL was recovered from a particular accused, as the same fact does not find place in the recovery memos. On the packet of lathies recovered on the information and at the instance of Kanwari, Rami and others the fact seal.being put thereon has not been recorded in recovery memos. This gross-negligence made in making investigation of the case by the Investigating Officer deserves to be deprecated and it is deprecated. 19. The statements of the eye-witnesses PW-8 Smt. Kanwari, PW-18 Bhanwara and PW-26 Badri u/s. 161 Cr.P.C. were recorded by the Investigating Officer on the date on which FIR was registered. Delay made in recording statements u/s. 161 Cr.P.C., of other eye-witnesses by the Investigating Officer is not a serious infirmity in the prosecution cases in the facts thereof. Simpliciter delay in recording the statement u/s. 161 Cr.P.C. of eye-witnesses by the Investigating Officer by itself may not amount to a serious infirmity in every prosecution case. It may assume such a character if there are concomitant circumstance to suggest that investigator was deliberately marking time with a view to decide about the shape to be given to the case and eye-witnesses to be introduced. It may assume such a character if there are concomitant circumstance to suggest that investigator was deliberately marking time with a view to decide about the shape to be given to the case and eye-witnesses to be introduced. Learned counsel for the accused-appellants has failed to point out any surrounding circumstance concerning thereof with this delay in recording the statements of the eye-witnesses cast a cloud of suspension on the credibility of the entire wrap and woof of the prosecution story. Mere delay in recording the statements u/s. 161 Cr.P.C. of some of eye-witnesses by Investigating Officer in the presence of the dying declaration Ex.P/29 of deceased-Deva and the statements of the eye-witnesses in the Court cannot be taken looming large in the background which inevitably leads to the conclusion that the prosecution story was conceived and constructed after a good deal and deliberation and delay in shaddy setting. Undisputedly Deva named accused-appellant No. 1 in the dying declaration. He also named therein two other accused-appellants. The decision of the Hon'ble Supreme Court in the case of Ganesh Bhavan Patel & Anr v. State of Maharashtra (supra) is hardly of any help and substance to the accused-appellants in the case. In that case their Lordships of the Supreme Court held, "the delay in examining the eye-witness by the Investigating Officer on the peculiar facts of the case amounts to serious infirmity in the prosecution case". At the cost of repetition it is to be stated that the accused-appellants have failed to bring on record any peculiar facts which may create doubt on the prosecution case. Thus the contention raised by the learned counsel for the accused-appellants is devoid of any substance and merits. 20. Having carefully gone through the document Ex.29 and statements of prosecution witnesses though there appear slight discrepancies are the place of the incident therein but not of that degree and force to cast doubt in the prosecution case. Admittedly deceased-Deva is the father of the accused-appellant No. 1. Why he will falsely implicate his own son in the incident. Learned counsel for the accused-appellants submits that in dying declaration Ex.P/29 father's name of the accused-appellant No. 2 and the name and father's name of the accused-appellant No. 3 were not given by deceased-Deva. Their names are there in FIR. Why he will falsely implicate his own son in the incident. Learned counsel for the accused-appellants submits that in dying declaration Ex.P/29 father's name of the accused-appellant No. 2 and the name and father's name of the accused-appellant No. 3 were not given by deceased-Deva. Their names are there in FIR. Within two hours, how the names and father's name of these two accused-appellants were got by the investigating officer is not explained and it creates serious suspecion in the prosecution case. 21. It is correct That in Ex.P/29 father's name of the accused-appellant No. 2 and the name and father's name of the accused-appellant No. 3 are not there. But in Ex.P/29 deceased-Deva stated accused-appellant No. 1-Sarwan S/o Teeja and second son (English translation). 22. Learned Public Prosecutor submits that Teeja is the mother of the accused-appellants Nos. 2 & 3. We do not find on the record any evidence in support of what it is stated by the learned Public Prosecutor. He failed to point out any evidence in support of his this statement made. Still we proceed with the assumption, presumption and acceptance that the investigating officer suppressed this fact how he got the father's name of Sarvan accused-appellant No. 2 and name and father's name of another accused-appellant No. 3 it was at the most a negligence or lapse on his part but benefit thereof will not go to the accused- appellants and that too to the extent so as on this ground they have to be given clean chit in this case of double murder. It is no more res Integra that only on the ground that negligence and lapse were made by the Investigating Officer in conducting investigation in a criminal case here a double murder case the prosecution case cannot be disbelieved or discarded when there is evidence of the person witnessed the incident and same is accepted on.being found reliable by the learned trial Court to bring home guilt to the accused-appellants to the offence for which they are charged. The accused-appellants did not put a single question to the Investigating Officer during his examination in Court as to how he got father's name of the accused-appellant No. 2 and name and father's name of the accused-appellant No. 3. The accused-appellants did not put a single question to the Investigating Officer during his examination in Court as to how he got father's name of the accused-appellant No. 2 and name and father's name of the accused-appellant No. 3. Thus mere on suppression of this alleged fact by the prosecution, testimony of eye-witnesses of the incident PW-10 Soni, PW-12 Naurat, PW-16 Kishna, PW-17 Hanuman and PW-18 Bhanwara cannot be brushed aside. 23. A dying declaration not being a deposition in the Court, neither made on oath nor in the presence of the accused and, therefore, not tested by cross-examination is yet admissible evidence as an exception to general rule against the admissibility of hearsay. This admissibility is founded on the principle of necessity. A dying declaration if found reliable can form the basis of conviction. A Court of fact is not excluded from acting upon an un-corroborated dying declaration for finding conviction. It is a piece of evidence stand on the same footing as any other piece of evidence. NEMO MORITURUS PRAESUMITUR MENTIRE - no one at the point of death is presumed to lie. A man will not meet with his maker with a lie in his mouth is the philosophy in law underlying admittance in evidence of dying declaration. Such statements are admitted upon consideration that their declarations are made in extremity when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The Court is always to keep in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination it is essential for it to insist that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. 24. Learned counsel for the accused-appellants have not challenged the dying declaration of Deva on the grounds that the deceased was not in a fit state of mind to make the same or that it is influenced by any extraneous consideration or the deceased was tutored or prompted. 25. A bare perusal of Ex.P/29 reveals that the statement of Deva were recorded in the presence of the Medical Jurist. The accused-appellant No. 1 is the real son of deceased-Deva and it is difficult to believe what to say to accept that father will falsely implicate his own son and that too at the point of death. The dying declaration Ex.P/29 finds support from the statements of eyewitnesses produced by the prosecution. We do not find otherwise also any material contradiction which may go to the core of the prosecution case in the dying declaration and statement made by the eye-witnesses. 26. In the case of Munshi Prasad v. State of Bihar, AIR 2001 SC 3031 their Lordships of the Supreme Court held : While appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the prosecution case, ought not to prompt the Court to reject evidence in its entirety. If the general tenor of the evidence given by the witness and the trial Court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate Court would not be justified to review it once again without justifiable reasons. It is totality of the situation, which has to be taken note of. 27. If the general tenor of the evidence given by the witness and the trial Court upon appreciation of evidence forms opinion about the credibility thereof, in the normal circumstances the appellate Court would not be justified to review it once again without justifiable reasons. It is totality of the situation, which has to be taken note of. 27. The reference may have to the another decision of the Apex Court in the case of Sukhdeo Singh Yadav v. State of Bihar, (2001) 8 SCC 86 wherein it is held : There would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment. Sometimes there is a deliberate attempt to offer the exaggerated evidence and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account. The evidence on record does not, however, lend any credence to the submissions made by the appellants. There may be some variations but there exists no major contradiction on record. The fact that the deceased was surrounded by the appellants and the firing was done at the instance of appellant 1 stands uncontradicted. If on a perusal of the evidence in its entirety, it appears to be otherwise trustworthy, question of the evidence being non-trustworthy would not arise. The Court can sift the chaff from the grain and find out the truth from the evidence itself. The evidence tendered lends credence to the prosecution case as regards the involvement of the appellant herein in the murder. 28. Learned counsel for the accused-appellant contended that there are serious contradiction in the statement of PW-9 Lalaram dying declaration and medical evidence. Before we proceed to judge and appreciate this contention advanced it is fruitful to have reference to two decisions of the Apex Court. 29. With respect to the law on discrepancies and contradictions in the statements of witnesses in the case of State of H.P. us. Lekh Raj & Anr., JT 1999(9) SC 43, their Lordships of the Supreme Court held : Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. Lekh Raj & Anr., JT 1999(9) SC 43, their Lordships of the Supreme Court held : Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavored by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.The discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. `Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. 30. In the case of Leela Rain (D) through Duli Claand v. State of Haryana & Anr., JT 1999(8) SC 274 , their Lordships of the Supreme Court held as under: The Court shall have to bear in mind that different witnesses react differently under different situations; whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise. Hardly one comes across a witness whose evidence does not contain some exaggeration or embellishments sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give slightly exaggerated account. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. Mere hair splitting on the available evidence ought not to be undertaken and instead the totality of the situation ought to have been reviewed. PW-9 Lalaram deposed in the examination-in-chief; " fd'kkuk Vs~DVj ls mrjus yxk mlh le; ek/kq ds lkFk Jo.k] ukSjr] jkeh] >eh] ftuds gkFkksa esa ydM+h] dqYgkM+h o iRFkj Fks ;s lc fd'kuk ds lkFk /kM+k/kM+ ekjihV djus yxsA " 31. The doctor has not noticed any injury by kulhari either on the body of deceased-Deva or deceased-Kishna. PW-9 though stated in his statement that some accused were carrying Kulhari yet it is not a material contradiction to discredit his testimony in totality. Deva victim of this incident made very categorical declaration that the accused-appellants have inflicted lathi blows, which finds support from the medical evidence and the statements of other eye-witnesses. In the presence of this prosecution evidence on the record, the dying declaration corroborated by medical evidence and statements of other persons witnessed the incident, this one word in the statement of PW-9 will not fall in the category of material contradiction on which entire prosecution case is to be disbelieved and the accused-appellants are to be set at liberty. 32. On the statement of PW-12 Naurat made in the cross-examination which reads as under : fd'kuk dh ?kjokyh dks >xM+s ds le; ?kVuk&LFky ij eSaus ugha ns[kk FkkA mldh iRuh daojh dks rks xkWao esa gh eSaus nks fnu ckn ns[kk Fkk ?kVuk ds fnu mls ogka ugha ns[kk FkkA 33. The learned counsel for the accused-appellant submitted these are in contradictions with statements of PW-8 Kanwari. 34. The learned counsel for the accused-appellant submitted these are in contradictions with statements of PW-8 Kanwari. 34. Having judged and appreciated this part of statement of PW-12 Naurat what at the most may be inferred therefrom in favour of the accused is that PW-8 Kanwari the wife of the deceased would not have witnessed this incident. PW-8 Kanwari was not taken as an eye-witness of the incident by the trial Court and has not relied upon her statement finding the conviction of the accused-appellants for the offences they are charged. Thus for this undisputed fact that contention raised by the learned counsel for the accused-appellants is devoid of any merits and substance. 35. Pointing at the statements of PW-13 Ratna made in the cross-examination, learned counsel for `L.: accused-appellant urged that it is not only a material contradiction with the statements of other prosecution witnesses, but he is a manufactured eye-witness. It has come in the prosecution evidence that from the house of this witness the house of deceased was not visible. That what it comes out therefrom possibly it would have been difficult to witness this incident by this witness sitting at his house. But still this contention advanced is not of any help to the accused for the obvious reason that the learned trial Court has not relied upon the testimony of this witness to record the conviction of the accused-appellants for the offence for which they are charged. 36. In the facts the decision of this Court in the case of Yusuf v. State of Rajasthan (supra) on which reliance has been placed by the learned counsel for the appellants is of little help to him in this case. 37. Learned counsel for the accused-appellants failed to bring to our notice any serious and material contradictions in the statement of PW-10 Soni and PW-16 Gopi with the statements of other eye-witnesses. 38. In the result, this appeal fails and the same is dismissed. The judgment and order of the Additional Sessions Judge, Kishangarh, District, Ajmer dated 5.3.1998 in Sessions Case No. 19/96 convicting the accused-appellants Madhu S/o Deva, Shravan S/o Ram Karan and Naurat S/o Ram Karan for the offence u/s. 302 r/w Section 34 IPC and sentenced each to undergo imprisonment for life and a fine 1,000/-, in default of payment thereof each to undergo further six months rigorous imprisonment is confirmed.Appeal dismissed. *******