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Madhya Pradesh High Court · body

2008 DIGILAW 681 (MP)

Karan Singh v. State of M. P.

2008-05-12

A.K.GOHIL, S.S.DWIVEDI

body2008
JUDGMENT Gohil, J. -- 1. The appellant has filed this jail appeal under section 374 of CrPC challenging his conviction under section 302 of IPC and sentence of life imprisonment with fine of Rs. 250/- vide judgment dated 7.4.2005 in ST No. 257/04 passed by the trial Court. 2. As per prosecution story, Dehati Nalishi was lodged by one Londu S/o. Devlal. As per this Dehati Nalishi, the deceased Guddibai alias Ganeshi was his daughter and on 28.4.2004 the appellant-accused alongwith his family members had come to his house and was staying at the house of his father-in-law. On 10.5.2004 at about 11 am in the morning, the deceased Guddibai was sitting in a hut, at that time, appellant came with axe, gave axe blow on the neck of the deceased and after assaulting her, ran away from the spot. On the basis of aforesaid Dehati Nalishi, crime was registered under section 307 of IPC and injured Ganeshi was referred for medical examination where her dying declaration Ex. P4 was recorded. After her death, postmortem of the dead body was performed and after investigation, charge sheet was filed. 3. No doubt, the deceased is wife of the appellant, but during trial, Kalawatibai (PW 1) mother of the deceased, Londuram (PW 2) father of the deceased, Gopal (PW 3), Chironji (PW 4), Lakhan (PW 5), Munnalal (PW 6), Amarlal (PW 10), Lachchho (PW 12) and Bindra (PW 13) have not supported the prosecution and they all were declared hostile. They are either the relatives of the deceased or the villagers. Relying on dying declaration (Ex. P-4) which was recorded by Dr. Padmesh Upadhyay (PW 8), learned trial Court found the offence proved against the appellant, convicted and sentenced him as aforesaid, against which the appellant has preferred this appeal from jail. 4. We have heard Ku. Sudha Shrivasiava, learned counsel appointed by the Legal Aid Officer of the High Court for the appellant and Shri Brijesh Sharma, learned Public Prosecutor for the respondent/State. Learned counsel for the appellant submitted that dying declaration Ex.P-4 is not admissible in evidence. In fact, it is not dying declaration, it is in the shape of opinion recorded by the doctor and such a dying declaration cannot form the basis of conviction. In reply, Shri Brijesh Sharma, learned public prosecutor supported the judgment and relied on the evidence of Dr. Padmesh Upadhyay (PW 8). 5. In fact, it is not dying declaration, it is in the shape of opinion recorded by the doctor and such a dying declaration cannot form the basis of conviction. In reply, Shri Brijesh Sharma, learned public prosecutor supported the judgment and relied on the evidence of Dr. Padmesh Upadhyay (PW 8). 5. Having heard learned counsel for the parties, we have considered the document Ex. P-4 which is a dying declaration. Admittedly, incident took place at about 11 O'clock in the morning and dying declaration was recorded at 3:50 p.m. i.e. after 4 hours. Dr. Padmesh Upadhyay (PW 8) has stated that the deceased received incised wound on the neck which was 2 cm. wide and injury was dangerous to life. Her condition was quite critical. Blood pressure was 106/70 and she was vomiting, her lower part of the body suffered with paralytic attack. Though, she was speaking, but he has admitted in the cross-examination that in Ex. P-4 he has not mentioned whether she was fully conscious and she was in fit condition to give statement. Doctor has stated that her voice was quite low and staggering. In the cross-examination he has admitted that she had stated that her husband was mad for last one month. She had also informed him that after sustaining an axe blow, she immediately became unconscious, but when she was being shifted in the jeep, she came to know that jeep was of ASI Khan and her father, mother and brother were present. But, this statement was contradicted by Dr. S.C. Agrawal (PW 7), who performed the autopsy. Dr. S.C. Agrawal (PW 7) has stated in his statement that because of the injuries over the neck and spinal cord which was cut, she must have died immediately after receiving the axe blow. Doctor has stated that she might be in a position to speak something for a while but not for a long time, contrary to this, her statement was recorded after four hours. 6. Thus, in view of the aforesaid medical evidence, it is clear that she must have not survived for four hours as the dying declaration was recorded after 3-112 hours of the incident. 6. Thus, in view of the aforesaid medical evidence, it is clear that she must have not survived for four hours as the dying declaration was recorded after 3-112 hours of the incident. From the aforesaid evidence of PW 7, doctor who performed autopsy, it is clear that she might not be in a position to speak anything when her dying declaration was recorded which has raised a serious doubt in the prosecution evidence. 7. We have carefully perused the document Ex. P-4. It is clear that in Ex. P-4 the doctor has not mentioned any certificate that the deceased was in a fit mental condition to give statement or she was fully conscious. Doctor has also not made endorsement on the dying declaration Ex. P-4 that while recording her dying declaration she remained fully conscious and, therefore, in the absence of medical certificate, the reliance cannot be placed on a dying declaration. Doctor himself has raised doubt about her fit mental status and consciousness looking to the manner in which the doctor has recorded the dying declaration., the same cannot be accepted. He has not directly asked any question from Ganeshi (the deceased). It appears that he was asking questions from the parents of Ganeshi and whatever they were answering, he was writing. The trial Court has recorded a finding that there was no evidence on record of this effect that the appellant was insane person. We have also not considered this aspect of the matter. We have only considered whether dying declaration is reliable and sufficient to maintain conviction. We are of the view that simply on the basis of dying declaration which even bears no endorsement of the doctor about the fit mental condition, the same cannot be accepted as reliable dying declaration. In this case one more circumstance is that the dying declaration was recorded in the presence of the mother, father and brother of the deceased, their thumb impressions were also obtained thereon, but none of them has supported the prosecution in the Court, therefore, this possibility cannot be ruled out that they may be instrumental in getting the dying declaration recorded during investigation from the doctor. Thus, on the basis of aforesaid dying declaration, the conviction of the appellant cannot be affirmed and it cannot be held that the evidence of dying declaration is of a conclusive nature. Thus, on the basis of aforesaid dying declaration, the conviction of the appellant cannot be affirmed and it cannot be held that the evidence of dying declaration is of a conclusive nature. We are aware of this legal position that conviction can be based on the evidence of dying declaration alone but in that case, the evidence of dying declaration must be reliable, trustworthy and truthful in nature. 8. The legal position is very clear regarding conviction solely on the evidence of dying declaration. In the case of Paniben v. State of Gujarat [ (1992) 2 SCC 474 ], their Lordships of the Supreme Court considered the law relating to dying declaration and also the circumstance under which such declaration can form sole basis of conviction. The apex Court has held that a dying declaration is entitled to great weight. Once the Court is satisfied that the declaration is true and voluntary, it could base conviction without corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence and not a rule of law. See also Vikas v. State of Maharashtra [ (2008) 2 SCC 516 ]. While accepting the evidence of dying declaration, the Court is required to scrutinize the dying declaration carefully and has to ensure that the dying declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state of mind to make the declaration. Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks upon the medical opinion. It there is a doubtful evidence about the fit mental condition and when there is also doubtful evidence whether the maker of the dying declaration i.e. the deceased was fully conscious or not, the Court can consider the medical evidence. It there is a doubtful evidence about the fit mental condition and when there is also doubtful evidence whether the maker of the dying declaration i.e. the deceased was fully conscious or not, the Court can consider the medical evidence. And if the Court is not satisfied that the deceased was in fit mental condition or there are contradictions in the opinion of the doctor vis a vis opinion of the eye witnesses, and if the evidence does not satisfy the test laid down, the Court may discard the same and may record its conclusion that it does not inspire confidence about its correctness and in such circumstance in a particular case that requires corroboration and if there is no corroborative evidence, the same can be discarded but if the evidence is reliable and trustworthy the conviction can be based thereon. 9. We have also noticed one more material fact that the evidence of memorandum under section 27 of the Evidence Act and thereafter the seizure of axe is not found proved by any independent evidence. From the evidence of Munna-PW-9 the trial Court has not found that aforesaid axe was seized after receiving the information from the accused, the Court has also not found proved that it was the appellant, who committed murder of his wife by giving axe blow on her neck. 10. Thus, considering the totality of the factual matrix, legal position and circumstances of the case, we are of the view that the conviction cannot be affirmed only on the basis of evidence of dying declaration which in our considered opinion is not reliable and trustworthy. Accordingly, this appeal is allowed. The conviction of the appellant is hereby set-aside. He is acquitted from the charge by extending the benefit of doubt. He is in jail. He be released forthwith, if not required in any other case.