Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 573 (MP)

Sulabh Jain v. State of M. P.

2010-05-18

P.K.JAISWAL

body2010
ORDER P.K. Jaiswal, J. 1. Heard on the question of admission. The Petitioner who is accused in Sessions Trial No. 383/09, pending before the Sessions Judge, Bhopal and is charged under Section 302/ 34 of IPC and under Section 25 and 27 of Arms Act, 1959, is challenging the order dated 26.4.2010 passed by Sessions Judge, Bhopal, whereby the learned Sessions Judge has allowed the application filed on behalf of the complainant for requisition of the record of complaint dated 17.12.2008, statement of the deceased recorded therein and other documents and treating the statement of deceased Princy Jain recorded before the DIG, Bhopal under Section 32 of the Evidence Act as dying declaration and called the then DIG, Bhopal for evidence. 2. On 2.3.2009 an FIR was lodged by the first informant Shefali Goel (P.W. 12) that an incident took place on 2.3.2009 at 18:30 hours in which Princy Jain (since deceased) sustained gun shot injury. The Police Station M.P. Nagar, Bhopal has registered Crime No. 129/2009 for the offence under Section 302 of IPC. It is alleged that the Petitioner is said to have caused gun shot injury to Princy Jain. The Court statement of P.W. 1 to P.W. 14 were recorded between 20.8.2009 to 26.3.2010. 3. During the trial an application was filed by Om Prakash, father of the deceased Princy Jain wherein it was stated that prior to the incident of 2.3.2009, at Police Station Ganj Basoda, Adesh Jain, uncle of the accused Sulabh Jain has lodged false report against deceased Princy Jain and his family members and in this connection om Prakash Jain has submitted an application on 17.11.2008 to the DIG, Bhopal alleging that he and his family members are being harassed by Sulabh Jain and his family members at which the then DIG (Ashok Awasthi) had got recorded the statement of Om Prakash, Nikesh, Princy (deceased) etc. It is stated that in these statements Princy Jain had alleged that the present applicant Sulabh Jain had been threatening to kill her and he may do some untoward with her. It is prayed by the complainant that the statement of deceased Princy Jain given to DIG, Bhopal be treated as dying declaration under Section 32 of the Evidence Act. 4. No written reply was filed by the applicant. It is prayed by the complainant that the statement of deceased Princy Jain given to DIG, Bhopal be treated as dying declaration under Section 32 of the Evidence Act. 4. No written reply was filed by the applicant. When the matter was fixed for argument on the said application on 26.4.2010, learned Counsel for the applicant orally opposed the application and prayed for its dismissal. 5. The learned Trial Judge after appreciating the argument of learned Counsel for the parties and also considering the fact that one Purse of the deceased was seized vide property seizure memo dated 2.3.2009 and in the said purse, one letter written by deceased Princy Jain to Police Station M.P. Nagar, Bhopal was also seized in which she had lodged a complaint against the present applicant Sulabh Jain, in the interest of justice to both the parties, allowed the application and directed the then DIG Shri Ashok Awasthi to remain present along with record i.e. application dated 17.11.2008 and statement of deceased and other persons recorded by the then DIG before the Court and for recording of his statement issued summon to Shri Ashok Awasthi for 17.5.2010. 6. Learned Counsel for the applicant submits that the said statement of deceased Princy Jain recorded before the DIG, Bhopal in pursuance to the complaint lodged by the father of the deceased on 17.11.2008, pertains to some different incident and the same cannot be treated as a dying declaration as admissible under Section 32(1) of the Evidence Act as it is not one in the series of the same incident or transaction. He further submits that the learned Trial Judge has committed an error of law in allowing the application filed on behalf of the complainant for treating the statement of Princy Jain recorded by the Dy. Inspector General of Bhopal under Section 32 of the Evidence Act, as dying declaration and calling of Shri Ashok Awasthi, the then DIG, Bhopal for evidence. It is further submitted that letter dated 2.3.2009 which was seized by the police was never written by Princy Jain and genuineness of the said letter is completely doubtful. In support of the said contention, he drew my attention to para 44 and 45 of the statement of Shefali Goel (P.W. 12) and Ex. P/14 the report of handwriting expert and statement of Handwriting Expert K.K. Sahukar (P.W. 10). In support of the said contention, he drew my attention to para 44 and 45 of the statement of Shefali Goel (P.W. 12) and Ex. P/14 the report of handwriting expert and statement of Handwriting Expert K.K. Sahukar (P.W. 10). He would further drew my attention to the decision of Privy Council in the case of Pakala Narayana Swami v. Emperor AIR 1939 Privy Council 47, Division Bench decision of this Court in the case of Onkar v. State of Madhya Pradesh 1974 CriL.J. 1200 and decision of the Apex Court in the case of Sudhakar and Anr. v. State of Maharashtra AIR 2000 SC 2602 . 7. In Pakala Narayana Swami (supra), the victim of the offence, before he started to go to another village, made a statement to his wife that the wife of the accused had written and asked him to go and receive payments due to him. This statement was sought to be proved at the trial and the Privy Council held that such a statement was inadmissible in evidence under Section 32(1) of the Evidence Act as a circumstance of the transaction, which resulted in death. The Privy Council also observed that the phrase "circumstances of the transaction" in the section conveyed some limitations. In Onkar v. State of M.P. (supra) while following the decision of Privy Council in Pakala Narayana Swami (supra), the Division Bench of this Court has explained the nature of circumstances contemplated by Section 32 of the Evidence Act thus: The circumstances must have some proximate relation to the actual occurrence and they can only include the acts done when and where the death was caused....Thus a statement merely suggesting motive for a crime cannot be admitted in evidence unless it is so intimately connected with the transaction itself as to be a circumstance of the transaction. In the instant case evidence has been led about statements made by the deceased long before this incident which may suggest motive for the crime. In Allijan Munshi v. State AIR 1960 Bom 290 : 1960 Cri.L.J. 894 the Bombay High Court has taken a similar view. 8. In the case of Sudhakar and Anr. v. State of Maharashtra (supra), the statement of prosecutrix was recorded by the Police after 11 days from the date of incident. She committed suicide after more than five and half months. 8. In the case of Sudhakar and Anr. v. State of Maharashtra (supra), the statement of prosecutrix was recorded by the Police after 11 days from the date of incident. She committed suicide after more than five and half months. The prosecution did not directly state the fact regarding cause of death, the Apex Court held that there is no legal evidence on record that the prosecutrix at or about the time of making the statement had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected to on account of rape committed on her person. The prosecution evidence does not even disclose the cause of death of the deceased. The prosecution did not directly state any fact regarding cause of death and, therefore, statement of prosecutrix cannot be treated as dying declaration as it was not in the series of circumstances of the transactions which resulted in death of deceased. No cogent and reliable evidence to connect the accused with commission of crime was found. Para 10 and 11 is relevant which reads as under: 10-11. There is no legal evidence on record that the prosecutrix at or about the time of making the statement had disclosed her mind for committing suicide allegedly on account of the humiliation to which she was subjected to on account of rape committed on her person. The prosecution evidence does not even disclose the cause of death of the deceased. The circumstances stated in Exhibit P-59 do no suggest that a person making such a statement would, under the normal circumstances, commit suicide after more than five and a half months. The High Court was, therefore, not justified in relying upon Exhibit P-59 as a dying declaration holding it that the said statement was in series of circumstances of the transaction which resulted in the death of the deceased on 21-12-1994. The conviction of the persons accused of offences cannot be based upon conjectures and suspicions. Statement Exhibit P-59 if not treated as a dying declaration, there is no cogent and reliable evidence which can connect the accused with the commission of the crime. In that event the other arguments advanced on behalf of the Appellants assume importance. The conviction of the persons accused of offences cannot be based upon conjectures and suspicions. Statement Exhibit P-59 if not treated as a dying declaration, there is no cogent and reliable evidence which can connect the accused with the commission of the crime. In that event the other arguments advanced on behalf of the Appellants assume importance. Other circumstances such as delay in lodging the FIR, medical examination of the prosecutrix, the non examination of material witnesses and turning hostile of witnesses including the Dnyaeshwar Mujmul and Dnyaneshwar Adhav are also required to be taken note of. It has also to be kept in mind that after the incident on 9th July, 1994, the prosecutrix is shown to have attended the school on 10th and 11th July, 1994 as well. Her mother in cross-examination also stated that Ms. Rakhi had told her about the incident only on 12th July, 1994 at about 5.00 p.m. P.W. 3, the father of the prosecutrix deposed in the Court that: Rakhi did not tell me on 17th, 18th, 19th July, 1994 that she wanted to file a complaint. I did not ask Rakhi whatever she wanted to file a criminal complaint. I did not disclose before the police on 20-7-1994 that Rakhi told me that she wanted to file criminal complaint. 9. A complaint in writing made to the police by a person who dies sometime thereafter, expressing apprehension of death at the hands of certain person is admissible in evidence under Sections. 32(1) and 8 of the Evidence Act, when the person whose conduct is the source of the apprehension, is charged with the offence of murder of the person making the complaint. The statement is admissible as relating to "the circumstances of the transaction which resulted in his death", within Section 32(1). It cannot be held in such cases that there was no proximate connection between the death of the complainant and the complaint from the fact that the complaint was made nearly two and half months before the death. Thus, on complaint lodged by father of the deceased to Police in which statement of the deceased was recorded and she expressed her apprehension of death at the hands of accused before two and half months before the death is admissible under Section 32 of the Evidence Act. 10. Thus, on complaint lodged by father of the deceased to Police in which statement of the deceased was recorded and she expressed her apprehension of death at the hands of accused before two and half months before the death is admissible under Section 32 of the Evidence Act. 10. The Apex Court in the case of Patel Hiralal v. State of Gujarat reported in AIR 2001 SC 2944 held that by Section 32(1) two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) his statement as to the cause of his death (2) His statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelop a far wider amplitude than the first category. The words 'statement as to any of the circumstances' are by themselves capable of expanding the width and contours of the scope of admissibility. When the word 'circumstances' is linked to "transaction which resulted in his death' the Sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the Sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a dead person within the sweep of the Sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable. Once that test of reliability is found positive the Court has to consider the utility of that statement in the particular case. 11. Here in the present case, on the basis of written complaint, lodged by the father of the deceased, statement of the deceased-Princy Jain was recorded before the then DIG, Bhopal in which she expressed apprehension of her death at the hands of present applicant and thereafter within a period of two and half-months she died, therefore her statement recorded before the then DIG, Bhopal would be admissible in evidence as per Sub-section (1) of Section 32 of the Evidence Act The learned Trial Court has not committed any legal error in allowing the application vide impugned order dated 26.4.2010. 12. 12. For the above mentioned reasons, petition filed by the Petitioner under Section of the Code of Criminal Procedure, 1973 has no merit and is according dismissed.