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Madhya Pradesh High Court · body

2007 DIGILAW 96 (MP)

PAPOO SINGH v. STATE OF M. P.

2007-01-23

A.K.SHRIVASTAVA

body2007
A. K. SHRIVASTAVA, J. ( 1 ) FEELING aggrieved by the judgment of conviction and order of sentence dated 19. 10. 1994 passed by learned First Additional Sessions Judge, shivpuri in Sessions Trial No. 22/92 convicting appellant under Section 302 IPC and sentencing him to suffer life imprisonment, this appeal has been filed by accused/appellant under Section 374 (2) of the Code of Criminal procedure. ( 2 ) IN brief the case of prosecution is that on 11. 10. 1991 at 12. 00 in the noon Karan s/o Dovaliya (hereinafter referred to as 'the deceased') was irrigating his field, at that juncture, appellant Pappu alias Bablu came behind him and dealt knife blow on the back of the deceased as well as on the elbow of both the hands. The deceased on account of receiving cut injuries fell down, at that juncture acquitted co-accused Shambhu Singh was also standing there carrying a gun and was instigating appellant to kill the deceased. Thereafter, Thakur Karan Singh and Shripat arrived at the spot, on seeing these two persons, accused persons ran away. ( 3 ) IT is the further case of prosecution that in the evening at 5. 30, deceased who was alive at that juncture, along with his parents and karan Singh Thakur went to lodge the report at police station Pohar. ( 4 ) ON lodging of the First Information report, the criminal law was triggered off and set in motion. The investigating agency arrived at the spot; sent the deceased who was alive at that time to the hospital for his treatment; seized ordinary and blood stained earth from the place of occurrence; recorded the statement of the witnesses; requested the doctor on duty to record the dying declaration of the deceased; on account of the death of the deceased in the late night; his dead body was sent for postmortem; arrested the accused persons and on the basis of their memorandum statement under Section 27 of the Evidence Act seized a knife which was used as weapon in the commission of the offence from the appellant. ( 5 ) AFTER completion of the investigation, a charge sheet was submitted in the competent court which on its turn committed the case to the court of session and from where it was received by the trial court for its trial. ( 5 ) AFTER completion of the investigation, a charge sheet was submitted in the competent court which on its turn committed the case to the court of session and from where it was received by the trial court for its trial. ( 6 ) THE learned trial Judge on the basis of the averments made against accused persons framed charges punishable under Sections 302 and 302/34 IPC against accused persons. ( 7 ) NEEDLESS to emphasize both the accused persons abjured their guilt and pleaded complete innocence and maladroit implication. ( 8 ) IN order to bring home the charges, the prosecution examined as many as 18 witnesses and placed Ex. P-1 to P-25 the documents on record. ( 9 ) THOUGH the defence of accused persons is of maladroit implication, however, they did not choose to examine any defence witness. ( 10 ) THE learned trial Judge on the basis of the evidence placed on record came to hold that the prosecution has not proved the case beyond all possible doubt against accused shambhu Singh as a result of which acquitted him. However, according to the learned trial court since there is evidence against the present appellant, he has been convicted under Section 302 IPC and has been directed to suffer life imprisonment. ( 11 ) IN this manner this appeal has been preferred by appellant assailing his judgment of conviction and order of sentence. ( 12 ) IT has been vehemently argued by Shri atul Gupta, learned counsel for appellant that in the present case there is no eye-witness. According to learned counsel the case rests upon dying declarations and there are as many as five dying declarations. The first dying declaration is FIR (Ex. P-21) which was lodged by the deceased, since the deceased died later on the nature of FIR would become his dying declaration; the second dying declaration is case diary statement recorded under Section 161 cr. P. C. which is Ex. P/22; the third dying declaration is Ex. P/14 which has been recorded by Dr.. A. Qureshi (PW-11) when the deceased was undergoing treatment in the hospital; the fourth dying declaration is an oral dying declaration given to his father Dovaliya (PW-3); the last and fifth dying declaration is also oral as the same was given to the brother of the deceased, namely, Narayan (PW-7 ). P/14 which has been recorded by Dr.. A. Qureshi (PW-11) when the deceased was undergoing treatment in the hospital; the fourth dying declaration is an oral dying declaration given to his father Dovaliya (PW-3); the last and fifth dying declaration is also oral as the same was given to the brother of the deceased, namely, Narayan (PW-7 ). ( 13 ) THE contention of learned counsel for appellant is that if the evidence of PW-7, narayan is considered in proper perspective, it is difficult to hold that any dying declaration was given to him. So far as dying declaration given to his father Dovaliya is concerned, this witness has stated that deceased told him that Pappu alias Bablu inflicted knife injuries to him and the prosecution has not proved that appellant is the same Pappu having alias Bablu. It has been further argued by learned counsel that if the FIR (Ex. P/21) and police statement of deceased (Ex. P/22) which later on became his dying declaration as well as the dying declaration (Ex. P/14) recorded by Dr.. A. Qureshi (PW-11) are read conjointly, it raises a heavy doubt in regard to the implication of the appellant because in the FIR it has been mentioned that pappu alias Bablu has caused injuries to the deceased while in the dying declaration recorded by the doctor, alias 'bablu' is not there. Apart from this in the dying declaration recorded by the doctor, the deceased has named two persons, namely, Shriman and pappu causing injuries by knife while it is said that acquitted co-accused Shambhu Singh who was carrying a gun, was standing there and therefore it raises a heavy doubt in regard to the implication of the appellant. Apart from this, learned counsel has further submitted that before recording dying declaration the doctor certified that patient was in semi-conscious condition and therefore in such a situation the dying declaration Ex. P/14 ought not to have been relied upon by the learned trial court. Hence it has been contended that by allowing this appeal the impugned judgment be set aside and appellant be acquitted. ( 14 ) ON the other hand Shri M. P. S. Bhadoriya, learned public prosecutor argued in support of the impugned judgment. ( 15 ) HAVING heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. ( 14 ) ON the other hand Shri M. P. S. Bhadoriya, learned public prosecutor argued in support of the impugned judgment. ( 15 ) HAVING heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. In the present case the prosecution has not examined any person as eye-witness and the persons, namely, karan Singh Thakur and Shripati Kachhi came after the incident had occurred. The present case is based on five dying declarations of the deceased. The law in regard to dying declaration is based on maxim "nemo moriturus praesumitur mentire". It is no doubt true that if the "dying declaration inspires confidence and the deceased was in fit mental condition to give the dying declaration, the conviction can be based solely on its basis and no corroboration is required. It is also well settled in law that corroboration is a rule of prudence only. The supreme Court in the case of State of Punjab v. Praveen Kumar has categorically held that if in the dying declarations different versions of the incident are mentioned, it creates heavy doubt in regard to their truthfulness. The supreme Court further held that mere fact that the name of one accused was common in all the dying declarations would not be sufficient to convict the said accused. The truthfulness of the declaration should be decided on the basis of other reliable corroborative evidence in that situation. ( 16 ) AFTER going through the FIR minutely, it is perceptible that one Pappu alias Bablu has been made an accused causing injuries by knife to the deceased. The father of the deceased, namely, Davoliya (PW-3) has also stated in his evidence that on being asked to the deceased he (deceased) told that Pappu alias Bablu caused injuries by knife. There is nothing on record in order to show that present appellant Pappu is the same Pappu having alias Bablu. Indeed, it was the duty of the prosecution to prove this fact. ( 17 ) IF we X-ray the dying declaration (Ex. P-14) which was recorded by Dr.. A. Qureshi (PW-11), we find that appellant was in semiconscious condition. This fact also finds place in the dying declaration (Ex. P-14), though it has been mentioned that he was fit to give dying declaration. ( 17 ) IF we X-ray the dying declaration (Ex. P-14) which was recorded by Dr.. A. Qureshi (PW-11), we find that appellant was in semiconscious condition. This fact also finds place in the dying declaration (Ex. P-14), though it has been mentioned that he was fit to give dying declaration. However, in cross-examination it has been admitted by the doctor that again and again the deceased was becoming unconscious when the dying declaration was recorded and if that would be the position, according to us, it will be highly unsafe to place reliance on such dying declaration. Apart from this, in the dying declaration (Ex. P-14) recorded by Dr.. A. Qureshi (PW-11), on being asked by the doctor, deceased told that Shriman and Pappu caused injuries by knife and Shambhu Singh was standing carrying the gun. Nowhere, in this dying declaration alias Bablu has been mentioned though in the FIR, it has been specifically mentioned by the deceased that pappu alias Bablu caused injuries by knife. In the FIR no other person causing injuries by knife has been mentioned but in dying declaration (Ex. P-14) two persons are named causing injuries by knife. When Dr.. A. Qureshi appeared in the Court as PW-11, he has stated in para 5 of his testimony that while giving answer to question No. 3 deceased told that simmu and Pappu caused injuries to him. However, on going through the answer given by deceased in dying declaration Ex. P/14, it is gathered that the name of one Shriman has been mentioned and not Simmu. This would be an additional ground to hold that in the present case, corroboration of dying declaration is required as held by the Apex Court in the case of Praveen Kumar (Supra ). ( 18 ) SO far as giving oral declaration and its authenticity and credibility is concerned, narayan (PW-7) who is the brother of the deceased in para 5 of his testimony has specifically stated and admitted that when he arrived at spot deceased did not tell anything to him nor he had any talk with him. Thus it is difficult to hold that the deceased gave any oral dying declaration to his brother Narayan. Thus it is difficult to hold that the deceased gave any oral dying declaration to his brother Narayan. We have already disbelieved the oral declaration given by deceased to his father Dovaliya (PW-3) because Dovaliya has stated that one pappu alias Bablu caused injuries by knife to the deceased as told to him by the deceased. There is no material in order to hold that appellant Pappu is the same Pappu having alias bablu. ( 19 ) SINCE none of the dying declaration is worth reliable, we have no option except to extend our benefit of doubt to the appellant. It is well settled in law that the suspicion however grave and strong may be, cannot take place of strict proof. ( 20 ) FOR the reasons stated herein above, this appeal is allowed. The judgment of conviction and order of sentence passed against the appellant is hereby set aside. He is acquitted from all the charges. The appellant is on bail, his bail bonds are discharged. Appeal allowed. .