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2010 DIGILAW 598 (MP)

Sitaram v. State of M. P.

2010-06-21

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A. K. Shrivastava, J. --1. Feeling aggrieved by the judgment of conviction and order of sentence dated 13.4.1999 passed by learned First Additional Sessions Judge, Dabra District Gwalior in Sessions Trial No. 22/1992 convicting the appellant under section 302 and 354 of IPC and thereby sentencing him to suffer life imprisonment and one year's rigorous imprisonment respectively, the appellant has knocked the doors of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that in the mid night of 6.9.1991 the deceased, namely. Smt. Mamta was sleeping along with her niece in her room. Inside the room the electric bulb was on. The appellant who is the Jeth (husband's elder brother) of the deceased was sleeping outside the room and at 3: 00 a.m. he entered inside the room in which the deceased was sleeping and there he tried to commit rape over her. The deceased when noticed some weight upon her body, she woke up and found that appellant was trying to commit rape over her. The deceased firmly resisted to the lascivious activity of the appellant and when appellant tried to overpower her, she gave threat of scream, as a result of which, the appellant became frightened, but in order to wrap his vile act he poured kerosene of the stove which was kept inside the room and lit the matchstick, as a result of which, the deceased was burnt. 3. The husband of the deceased is a rickshaw puller and he was not present inside the house at the time of incident as he had gone to drive the rickshaw. The deceased was brought in burning condition at 3: 30 a.m. at police station Dabra where the First Information Report was lodged by Siyarani who is her neighbour. 4. After registering the FIR, the criminal law was triggered and set in motion. The investigation agency sent the deceased, who was alive at the that time, to the hospital for treatment and also got her dying declaration recorded by Tahsildar Atmaram Katare. The dying declaration of the deceased was also recorded by Dr. H.K. Pastore. The investigating agency also recorded the case diary statement of the deceased. The deceased while undergoing the treatment on account of infection ultimately died on 12.9.1991. The dying declaration of the deceased was also recorded by Dr. H.K. Pastore. The investigating agency also recorded the case diary statement of the deceased. The deceased while undergoing the treatment on account of infection ultimately died on 12.9.1991. After the death of deceased, the case was altered to section 302 of IPC and the dead body of the deceased was sent for postmortem examination. 5. After the investigation was over, a charge-sheet was submitted in the committal Court, which on its turn committed the case to the Sessions Court and from where it was received by the trial Court for the trial. 6. The learned trial Judge on the basis of allegations made in the charge sheet framed charges punishable under section 302 and 354 of IPC against the appellant, which he denied and requested for the trial. 7. In order to prove the charges, prosecution examined as many as 7 witnesses and placed Ex. P/1 to Ex. P/14, the documents on record. 8. The defence of appellant is of false implication and the same defence he set forth in his statement recorded under section 313 of Cr. PC. The appellant also examined three witnesses in defence, namel, Kallu (DW-1), Munshilal (DW-2) and Laxminarayan Sharma (DW-3). 9. The learned trial Judge on the basis of the evidence placed on record came to hold that charges are proved against the appellant, as a result of which, convicted him and passed the sentence, which we have mentioned hereinabove. 10. In this manner, this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence passed by learned trial Court. 11. Vehemently it has been contended by Shri Singh, learned counsel for the appellant, that the sole eyewitnesses Ushabai who is the niece of the deceased did not support the case of prosecution and was declared hostile. By putting deep dent on Ex. P /1 and Ex. PIS which are the dying declarations recorded by Dr. H.K. Pastore and Tahsildar Atmaram respectively, it has been argued by him that so far as the dying declaration recorded by the doctor is concerned, since in his testomony he has not at all stated that what the deceased told him, therefore, merely putting exhibit mark on the dying declaration would not mean that the document of dying declaration recorded by the doctor has been proved. So far as the other dying declaration (Ex. P/8) recorded by Executive Magistrate Atmaram is concerned, it has been argued by learned counsel that this document too has not been proved because the scribe of this document, namely, Atmaram has not been examined as a witness. In support of his contention, learned counsel has placed reliance on the decision of Supreme Court Govind Narain and another v. State of Rajasthan, 1993 Supp. (3) SCC 343. On these premised submissions it has been contended by learned counsel that by allowing this appeal the impugned judgment of conviction and order of sentence be set aside. 12. On the other hand Shri M.P.S. Bhadoriya, learned Public Prosecutor for the respondent/State, argued in support of the impugned judgment and submitted that both the dying declarations (Ex. P/7 and Ex. P/8) are duly proved and apart from these two dying declarations, the case diary statement of the deceased is also on record which would be deemed to be her dying declaration as envisaged under Section 32 (1) of the Indian Evidence Act and, therefore, learned trial' Court did not commit any error in convicting the appellant. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 14. The sole eyewitness Ushabai (PW-4), who, according to the case of prosecution, was sleeping alongwith the deceased at the time of incident, has not supported the case of prosecution and she was declared hostile. Hence, the only evidence against the appellant is the two dying declarations Ex. P/7 and Ex. P/8 of the deceased which were recorded by Dr. H.K. Pastore and Executive Magistrate Atmaram respectively. So far as the dying declaration Ex. PIS recorded by Executive Magistrate Atmaram is concerned, according to us, it has not at all been proved since the Executive Magistrate Atmaram who recorded the dying declaration (Ex. P/8) was not examined by the prosecution for the reasons best known to it. According to us, the Executive Magistrate Atmaram was an important witness and prosecution should have examined him. The decision of Supreme Court Govind Narain and another (supra) has rightly been placed relinace by learned counsel for the appellant. The dying declaration (Ex.P/8) recorded by Executive Magistrate could have been proved from the testimony of Dr. According to us, the Executive Magistrate Atmaram was an important witness and prosecution should have examined him. The decision of Supreme Court Govind Narain and another (supra) has rightly been placed relinace by learned counsel for the appellant. The dying declaration (Ex.P/8) recorded by Executive Magistrate could have been proved from the testimony of Dr. H.K. Pastore also because in his presence the dying declaration was recorded by the Executive Magistrate, but in his entire testimony the doctor has not at all stated that what was told by the deceased to the Executive Magistrate and, therefore, merely by putting exhibit mark on the document of dying declaration recorded by Executive Magistrate, it cannot be said that it has been duly proved in the eyes of law. Hence, we hold that from the evidence of doctor also the dying declaration (Ex. P/8) recorded by Executive Magistrate is not proved. 15. So far as the dying declaration (Ex. P/7) recorded by Dr. H.K. Pastore is concerned, according to us, this document is also not a proved document for the simple reason that when the doctor appeared as PW-5 nowhere it was stated by him that what was told by the deceased to him and, therefore, according to us, merely putting exhibit mark on the document of dying declaration would not mean that the same has been proved. We may further add that mere production and marking of dying declaration as exhibits by the Court cannot be held to be a due proof of its contents. We have no scintilla of doubt and firmly we can say that the execution of above-said two dying declarations have to be proved by admissible evidence and merely marking the dying declarations as Ex. P/7 and Ex. P/8, is not the proof of the contents of those documents. The prosecution cannot be permitted to say by taking benefit of contents of the dying declarations which remained unspoken by the doctor who has allegedly proved them. In Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, AIR 1971 SC 1865 the same proposition has been enunciated in para 15 by the apex Court. Hence according to us, both these dying declarations are unproved documents and learned trial Court committed an error in convicting the appellant on the basis of unproved documents. 16. The evidence of Dr. H.K. Pastore is that the dying declaration (Ex. Hence according to us, both these dying declarations are unproved documents and learned trial Court committed an error in convicting the appellant on the basis of unproved documents. 16. The evidence of Dr. H.K. Pastore is that the dying declaration (Ex. P/7) recorded by his is in his handwriting. Similarly, on another dying declaration (Ex.P/8) which was recorded by the Executive Magistrate, namely, Atmaram on which the certificate of the doctor is there, only this much has been said by the said doctor that the said dying dec1araion was recorded in his presence and it bears his certificate. But, according to us, mere proof of handwriting on a document would not tantamount to proof of the contents of the two dying declarations and the facts stated in these documents. The defence has never admitted these documents and, therefore, mere proof of handwriting of doctor on the documents or even the execution of the document would not be sufficient evidence of the truth of the facts contained in the document of dying declaration and certainly it has to be proved by some admissible evidence. In this context we may profitably place reliance on the decision of Surpeme Court Ramji Dayawala and Sons. (P) Ltd. v. Invest Import, AIR 1981 SC 2085 wherein in para 16 it has been held by their Lordship of Supreme Court that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. Their Lordships further held that the truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Hence, for no rhyme or reason the above-said two dying declarations (Ex. P/7) can be placed reliance and the prosecution cannot take any advantage of these two documents which are not at all proved. 17. Hence, for no rhyme or reason the above-said two dying declarations (Ex. P/7) can be placed reliance and the prosecution cannot take any advantage of these two documents which are not at all proved. 17. We do not find any merit in the contention of learned Public Prosecution for the respondent/State that under section 161 CrPC statement of the deceased after her death would become her dying declaration, and, therefore, conviction can be accorded on the basis of her case diary statement. The argument at the first blush appears to be quite attractive, however, on deeper scrutiny the same is found to be devoid of any substance for the simple reason that this document has also not been exhibited and proved by any witness and, therefore, on the basis of un-exhibited and unproved document it would be hazardous to place reliance on it and the conviction cannot be accorded on the basis of unproved document. 18. There is no other evidence against the appellant. 19. For the reasons stated hereinabove we are unable to uphold the judgment of conviction and order of sentence passed by learned trial Court. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by learned trial Court is hereby set aside and the appellant is acquitted from all the charges. The appellant is in jail, he be set at liberty forthwith, if not required in any other case.