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2008 DIGILAW 975 (MP)

STATE OF M P v. RAJBAHADUR

2008-08-05

A.K.SHRIVASTAVA, B.M.GUPTA

body2008
Judgment ( 1. ) IMPUGNED judgment of absolvitur passed by the learned fourth Additional Sessions Judge, Morena in Sessions Trial No. 272/93, acquitting the respondents, has been made pivot in this appeal preferred by the State of M. P. after obtaining leave under Section 378 (3) of the code of Criminal Procedure. ( 2. ) IT would be relevant to mention here that during pendency of the appeal, respondent Koksingh died and his name has been deleted from the memo of appeal. ( 3. ) ON going through the impugned judgment, it is revealed that respondents rajbahadur and Suresh alias Chini were charged under Section 147,323,302 and 451 of IPC, while the deceased respondent koksingh and respondent Sukhlal were charged under Section 147, 323, 451 and 302/149 IPC. ( 4. ) IN brief, the case of the prosecution is that on 22. 10. 1992 at 7-8 a. m. Munni (hereinafter referred to as the deceased) went to collect the bricks from her old house. As soon as she picked up the bricks, it is said that respondent Chini, Rajbahadur and koksingh threw the bricks on her. It is also said that the accused Lochan (tried in the juvenile Court) dealt lathi blows on the hands and legs of the deceased. Thereafter, the deceased came to her house, but, it is said that all the accused persons also caused maarpeet at her house also. The incident was witnessed by her daughter-in-law Bitto, however, since the husband and son of the deceased were not at the house, therefore, she alone went to lodge the report. ( 5. ) IT is the further case of the prosecution that as soon as the deceased came near by the berm of the field of Kalicharan, at that juncture, all the accused persons arrived there. It is said that respondent sukhlal brought kerosene in a lota (jug), which was passed over to respondent Chini, who poured it on the head of the deceased and thereafter respondent Rajbahadur by lighting the matchstick set fire. It is said that the incident was witnessed by hardayal, husband of the deceased as well her son Mahesh. According to the prosecution, these two persons extinguished the fire. Further the case of the prosecution is that on the point of partition of the property, there was a dispute between the deceased and the respondents. ( 6. It is said that the incident was witnessed by hardayal, husband of the deceased as well her son Mahesh. According to the prosecution, these two persons extinguished the fire. Further the case of the prosecution is that on the point of partition of the property, there was a dispute between the deceased and the respondents. ( 6. ) THE deceased along with her husband hardayal came to Police Station Ambah and lodged the First Information Report. On lodging the FIR, the criminal law was triggered and set in motion. The case was registered against the respondents; the deceased, who was alive at that juncture, was sent to the hospital for treatment; the dying declaration of the deceased was recorded by Dr. R. G. Verma (PW10), who was also the treating doctor of the deceased; the investigating agency arrived at the spot, seized the burnt clothes of the deceased; recorded the statements of the witnesses. Investigating agency also took pain to get the dying declaration of the deceased recorded by the Executive Magistrate, eventually, R. P. Mishra, Naib tehsildar recorded the dying declaration of the deceased. ( 7. ) ON account of burn injuries, the deceased could not survive and breathed her last on 30. 10,1992 i. e. after 8 days of the incident. On the death of the deceased, the case was altered and registered under Section 302 of IPC. ( 8. ) AFTER the investigation was over, 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. ( 9. ) THE learned trial Judge on the basis of the averments made against the respondents in the charge-sheet, framed charges. Needless to emphasis, the respondents abjured their guilt and pleaded complete innocence. ( 10. ) IN order to bring home the charges, the prosecution examined as many as 13 witnesses and placed Ex. P1 to P24 the documents on record. ( 11. ) THE defence of the respondents/accused is of maladroit implication, however, in their defence they did not choose to examine any witness. ( 12. ) LEARNED trial court on close scrutiny of oral and documentary evidence came to hold that the prosecution has not been able to prove its case beyond all doubts. ( 11. ) THE defence of the respondents/accused is of maladroit implication, however, in their defence they did not choose to examine any witness. ( 12. ) LEARNED trial court on close scrutiny of oral and documentary evidence came to hold that the prosecution has not been able to prove its case beyond all doubts. Hence by giving benefit of doubt, trial Judge acquitted the respondents by the impugned judgment. ( 13. ) IN this manner, the present appeal has been filed by the State of M. P. after obtaining the leave under Section 378 (3) of the Code of Criminal Procedure. ( 14. ) SHRI Brajesh Sharma, learned Public prosecutor submits that in the present case, there are as many as four dying declarations of the deceased, they are: (i) FIR (Ex. P9), which after the death of the deceased became her dying declaration; (ii) dying declaration (Ex. P16)recorded by Dr R. G. Verma (PW10); (iii) dying declaration (Ex. P17)recorded by Executive Magistrate r. P. Mishra (PW13); and (iv) dying declaration (Ex. P24)recorded by Dr. Arun Sharma (PW12 ). By placing reliance on dying declarations ex. P16 and P17, it has been vehemently argued by the learned State counsel that if these two dying declarations are considered in proper perspective, it would reveal that there is specific allegation of the deceased against respondents Rajbahadur and suresh alias Chini. According to the learned state counsel in both these dying declarations, it has been so stated that Rajbahadur, koksingh and Suresh alias Chini lit the fire by matchstick and if that would be the position, learned trial court erred in disbelieving these two dying declarations and therefore the judgment of absolvitur be set aside. ( 15. ) BY putting deep dent on the finding of the trial Judge, acquitting other respondents, it has bee submitted by the learned counsel that their role has been assigned in the commission of the offence and therefore learned trial court ought to have convicted other respondents with the aid of Section 149 IPC. ( 15. ) BY putting deep dent on the finding of the trial Judge, acquitting other respondents, it has bee submitted by the learned counsel that their role has been assigned in the commission of the offence and therefore learned trial court ought to have convicted other respondents with the aid of Section 149 IPC. Further it has been contended by the learned State counsel that although hardayal (PW 5), Mahesh (PW3), and Bitto (PW6), who are the husband, son and daughter-in-law respectively of the deceased, were declared hostile, but if their testimony is considered in proper perspective, it would support the case of the prosecution and therefore the learned trial judge erred in disbelieving the testimony of these witnesses. Learned State counsel has placed heavy reliance on the decision of the Supreme Court Vikas and others v. State of Maharashtra. On these premised submissions, it has been argued by the learned state counsel that by setting aside the judgment of absolvitur, the respondents may be convicted and suitable sentence may be passed against them. ( 16. ) COMBATING the aforesaid submissions, it has been argued by Shri Dwivedi, learned counsel for the respondents that in the present case all the alleged eye-witnesses have been declared hostile and they have not at all supported the case of prosecution and therefore the trial court did not err in disbelieving the statements of these witnesses. By hammering on the hallmark on abovesaid four dying declarations, it has been argued by Shri Dwivedi that all the four dying declarations are inconsistent to each other and if that would be the position, in view of the decision of the Supreme court State of Punjab v. Praveen Kumar the respondents can not be roped and the judgment of absolvitur cannot be set aside. ( 17. ) BY inviting our attention to the testimony of Dr. R. G. Verma (PW10), it has been contended by the learned counsel that possibility that the deceased was tutored cannot be ruled out and if that would be the position, no authenticity can be put on any of the dying declarations. ( 17. ) BY inviting our attention to the testimony of Dr. R. G. Verma (PW10), it has been contended by the learned counsel that possibility that the deceased was tutored cannot be ruled out and if that would be the position, no authenticity can be put on any of the dying declarations. It has also been contended by the learned counsel for the respondents that nowhere in any of the dying declarations, it has come that after giving the dying declaration the same was read over and explained to the deceased and therefore it poses a big question mark on the veracity of the dying declaration. To bolster his submission, learned counsel has placed reliance on the following decisions: (i) Shaikh Bakshu and others v. State of Maharashtra. (ii) State of Punjab v. Praveen Kumar. (iii) K. Ramachandra Reddy and another v. The Public Prosecutor. ( 18. ) BY placing reliance on a Division bench judgment of this court in the case of papoo Singh v. State of Madhya Pradesh it has been contended by the learned State counsel that the view taken by the Apex court in the decision of Praveen Kumar (supra) has been followed by the Division Bench of this Court. Lastly, it has been contended by the learned counsel that if two views are possible, the view which has been taken by the trail court should be given more credence and merely because another view is possible, the finding recorded by the trial court can not be brushed aside by setting aside the judgment of acquittal. On these premised submissions, it has been argued that this appeal sans substance and the same be dismissed. ( 19. ) HAVING heard the learned counsel for the parties, we are of the view that this appeal deserves to be dismissed. ( 20. ) IN the present case, the statements of the eyewitnesses Hardayal (PW5), mahesh (PW3) and Bitto (PW6) can not be placed reliance because they are hostile witnesses and they have not at all supported the case of the prosecution. True, they are the in-laws of the deceased and are closely related to the respondents but the fact remains as such that since they are hostile witnesses and nothing is carved out from their testimony, hence the case of the prosecution can not be said to be proved from the evidence of these witnesses. ( 21. True, they are the in-laws of the deceased and are closely related to the respondents but the fact remains as such that since they are hostile witnesses and nothing is carved out from their testimony, hence the case of the prosecution can not be said to be proved from the evidence of these witnesses. ( 21. ) THE question now hinges is that whether the dying declarations can be placed reliance. ( 22. ) THE first dying declaration is the FIR ex. P9 of the deceased. This dying declaration has been proved by the ASI Raghuveer singh (PW7), as he is the scribe of the FIR, which was lodged by the deceased. On going through of this dying declaration, it is revealed that the deceased has stated that chini poured kerosene on her head and rajbahadur lit the matchstick and set the fire, as a result of which she received burn injuries. In this dying declaration, she has not at all named the other respondents setting the fire. The next dying declaration is ex. P16 which is recorded by Dr. R. G. Verma (PW10) at 11 a. m. viz. after 45 minutes of the recording of dying declaration Ex. P9. In this dying declaration, the acquisition of rajbahadur and Chini has been mentioned as it has been stated that Rajbahadur poured the kerosene and Chini lit the fire. The next dying declaration is Ex. P17, which was recorded by Executive Magistrate R. P. Mishra (PW13) at 11. 45 p. m. , according to which Chini lit the matchstick and rajbahadur poured the kerosene. The last dying declaration is Ex. P24, which has been recorded by Dr. Arun Sharma (PW12) at 5. 35 p. m. , in which the name of any of the accused setting the fire and pouring the kerosene has not at all been mentioned. ( 23. ) THUS, according to us, every dying declaration is inconsistent to each other and there is no consistency in any of the dying declarations. One important fact which can not be marginalized and blinked away is that neither in dying declarations Ex. P16 and Ex. P17 nor in dying declaration Ex. P24, it has been so stated that after recording the dying declaration the same was read over and examined to its maker. Indeed this cannot be presumed and therefore this fact should be mentioned in the dying declaration. P16 and Ex. P17 nor in dying declaration Ex. P24, it has been so stated that after recording the dying declaration the same was read over and examined to its maker. Indeed this cannot be presumed and therefore this fact should be mentioned in the dying declaration. The Supreme Court in Shaikh (supra)has categorically held that this was mandatory and if this is not done, the truthfulness of dying declaration can not be inferred. It would be apposite to quote para 13 of the decision which reads as under: "13. PW 1 in his statement stated that on 19. 8. 2001, on the basis of a letter requiring him to record dying declaration of the person who was admitted to the hospital, he went to the hospital at 7. 00 p. m. , met the Medical Officer in the hospital and thereafter he requested the Medical Officer to show the person to him. The letter in question was not produced by him. The trial court came to the conclusion that PW 3, the Medical Officer and the constable reached the Burns Ward at about 7. 10 p. m. As noted above, it was the evidence of PW3 that he had accompanied the Naib Tehsildar, PW1. Even if it is accepted as noted by the trial court that the Naib Tehsildar has not produced the letter because it may be misplaced but nothing prevented the prosecution to produce the copy of the letter which was purportedly written to the Naib Tehsildar. No effort in that regard has been made. The trial court and the High Court noted that the condition of the deceased was very poor as was stated by the Medical Officer and the condition was deteriorating since 6. 10 p. m. The trial court however held the dying declaration to be credible because the Medical Officer was present when the dying declaration was recorded. There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable. " (Emphasis supplied)If the ratio decidendi of the decision of shaikh (supra) is tested on the anvil of the present factual scenario, it would reveal that in Ex. The view is clearly unacceptable. " (Emphasis supplied)If the ratio decidendi of the decision of shaikh (supra) is tested on the anvil of the present factual scenario, it would reveal that in Ex. P16 and P17 nowhere it has been mentioned that they were read over and explained to the maker of it. In the case of shaikh (supra), the trial Court as well as the High Court placed reliance on the dying declarations of the deceased but Supreme court somersaulted the decision of both the Courts below by holding that it has not been borne out from the dying declaration that the same has been read over and explained to the deceased, therefore, no credence could be given to it. ( 24. ) A conviction can be based solely on dying declaration and no corroboration is needed if the same is cogent and trustworthy and is not the outcome of prompting or tutoring. In the present case, on going through para 10 of the testimony of Dr. R. G. Verma (PW10), it is revealed that the deceased was encircled by several persons and therefore it is difficult to hold that the deceased was not tutored. The Supreme court in the case of Praveen Kumar (supra)held that if the dying declaration was recorded in presence of the relatives of the deceased, the possibility that the deceased was tutored can not be ruled out. ( 25. ) IN Praveen Kumar (supra), Supreme court in para 10 has held that while appreciating the credibility of the evidence produced before the court, the court must view the evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them can not be a ground for convicting the named person. In the decision of Praveen Kumar (supra), the name of the accused came in two dying declarations but two dying declarations were found to be inconsistent to each other and therefore despite name of the accused came in both the dying declarations, the Supreme Court disbelieved both the dying declarations. The same view has been taken by this Court in the case of Papoo (supra ). The same view has been taken by this Court in the case of Papoo (supra ). The Supreme court in the case of K. Ramachandra Reddy (supra) held that if the dying declaration appears to be the outcome of prompting or a product of imagination, the Court should not believe it. ( 26. ) IN the present case, the trial Court has passed the judgment of acquittal on the following grounds: (i) Dying declarations have not been recorded in accordance with law; (ii) Each dying declaration is inconsistent to each other on the material point; (iii) Possibility of deceased being tutored can not be ruled out; (iv) When the dying declaration Ex. P17, which was recorded by Executive Magistrate, was being recorded, at that juncture, the doctor was not present there and the certificate was obtained on the dying declaration separately in his chamber; (v) In the dying declaration Ex. P17 recorded by the Executive Magistrate, the said authority did not put any note about the mental state of the deceased and whether she was in a fit condition to depose dying declaration. Learned State counsel could not point out that how the view taken by the learned trial judge can not be accepted or the same is not possible. This is well settled in law that if two views are possible, the view taken by the trial Court acquitting the respondents, should be given credence and the same should not be set aside merely because any other view is also possible. ( 27. ) THE decision of Vikas (supra), placed reliance by the Public Prosecutor, is tangentially off the point. In that case the dying declaration of the deceased was found to be quite reliable and it was found that the same is not the outcome of tutoring or prompting. Apart from that, there were oral dying declarations also. However, the facts and circumstances of the present case are totally different. ( 28. ) WE have given our anxious and bestowed consideration to the reasoning assigned by the learned trial Judge and we find them to be quite cogent as they are based on correct appreciation of the oral and documentary evidence placed on record. Merely because another view may be possible, would in itself is not sufficient to convict the respondents. ( 29. Merely because another view may be possible, would in itself is not sufficient to convict the respondents. ( 29. ) RESULTANTLY, this appeal is found to be bereft of any substance and the same is hereby dismissed. Appeal allowed.