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Madhya Pradesh High Court · body

2011 DIGILAW 374 (MP)

Anwar v. State of M. P.

2011-03-22

G.D.SAXENA, S.K.GANGELE

body2011
JUDGMENT : Itis submitted by the learned counsel that the Investigating Officer recorded thestatement of injured under Section 161 Cr.P.C ., butduring treatment he died, though special Executive Magistrate was available,but he did not call him before recording his statement and further certificatefrom the Medical Officer as to fitness and consciousness of declarant was not obtained. Under such circumstances, the statement can not be used asdying declaration. Reliance is placed on the decision of the Apex Court in the case of Shaikh Rafiq & another Vs. State of Maharashtra ( AIR 2008 SC 1362 ). Inthis case, the Investigating Officer Jai Singh Tomar (PW-16), during investigation, after lodging FIR by the injured and beforeleaving him for treatment of hospital, recorded his statement under Section 161 Cr.P.C . Further, the names of the accused and theimportant features of the case have been clearly mentioned in the report. Itcontains a narrative by the deceased as to the cause of this death, which findscomplete corroboration form the testimony of eyewitnesses and the medicalevidence on record. There is nothing on record to show that the deceased wasnot in a position to speak at the time when he dictated the report ofoccurrence. On the other hand, the materials and the other evidence on recordshow that the deceased was in a position to speak when he dictated the reportof occurrence. Therefore, the trial court was fully justified in holding thatthe deceased was in a fit state of mind at the time of making the statement.Furthermore, the dying declaration of the deceased was fully corroborated bythe other evidence on record. Thus, there is no cogent and convincing reasonfor doubting the correctness and truthfulness of the FIR as well as the dyingdeclaration of the deceased. True it is that there is delay in sending the copyof FIR to the concerning Magistrate buy on facts mentioned above, delay indelivering the report to the Magistrate concerned would not raise a suspicionthat FIR had been written later and was ante-timed. Suspicion that a line ortwo might have squeezed in her and there in some of the documents preparedduring the initial investigation would not dislodge the huge volume ofdocumentary and oral evidence on the spontaneity of the FIR. Itis contended that Dr. S. Agarkar (PW-7) examined theinjured at 11.45 a.m. in J. A.Hospital Gwalior and found him in shock. Suspicion that a line ortwo might have squeezed in her and there in some of the documents preparedduring the initial investigation would not dislodge the huge volume ofdocumentary and oral evidence on the spontaneity of the FIR. Itis contended that Dr. S. Agarkar (PW-7) examined theinjured at 11.45 a.m. in J. A.Hospital Gwalior and found him in shock. In crossexamination the doctor admits that at the time of medical examination, injuredwas not able the speak . But, this does not indicatethat at the time of lodging of FIR and recording statement of the injured, hewas not able to speak and on his dictation the FIR was not written by thepolice officer. So, on that count, the FIR (Ex.P/18) and police statement ofinjured (Ex.P/19) can not be doubted at all, as discussed in para 33 of this judgment. Itis well settled that though court has to scrutinize such evidence with greatercare and caution but such evidence cannot be discarded on the sole ground oftheir interest in the prosecution. Relationship per se does not affectcredibility of a witness. Merely because a witness happens to be a relative ofvictim of the crime, he/she cannot be characterized as an"interested" witness. It is trite that the term "interested"postulates that person concerned has some direct or indirect interest in seeingthat accused is somehow or the other convicted either because he had someanimus with the accused or for some other oblique motive. In the instant case,there was not indication that any of the witnesses, who were related to victim,whose testimony was relied upon by the trial court bore any animus against the appellants. In this view of the matter and thisbeing the well-settled law, it is difficult for us to discard the evidence ofthe witnesses, as discussed hereinabove, only on the ground that they wererelated to the deceased, in the absence of any infirmity in the said evidence.In this context reference may be made to the decisions in the case of Ranjit Singh & others Vs. State of Madhya Pradesh (2011 Cri . L.J. 283) and Brahm Swaroop & another Vs . State ofUP (2011 Cri L. J.306). Itis also true as per evidence of Dr. S. Agarkar (PW-7), who examined the injured after incident, that the injured was in ashock and was not in condition to speak and the blood was coming out formwounds. State of Madhya Pradesh (2011 Cri . L.J. 283) and Brahm Swaroop & another Vs . State ofUP (2011 Cri L. J.306). Itis also true as per evidence of Dr. S. Agarkar (PW-7), who examined the injured after incident, that the injured was in ashock and was not in condition to speak and the blood was coming out formwounds. Looking to the evidence of Om Prakash Sharma (PW-17), writer of FIR (Ex.P/18), whocategorically stated that the injured himself dictated the report and he wrotethe FIR and Jai Singh Tomar (PW-16) who recorded thecase diary statement (Ex.P/19) of injured, it can not be said that the injured Sabir Hussain was unconscious andwas not bale to speak or was not capable to get the FIR of incident recorded atpolice station. Inthe present case, undoubtedly injury No.1 had been caused on the vital part ofthe body of the deceased but it must also be borne in mind that when a personloses his sense he may act violently and that by itself may not be a ground tobe considered against him while determining the nature of the offence. The saidinjury is attributed to appellant-accused Sarafaraj ,Which as per post- mortam report, was deep abrasion ofsize 6 cm. x2 cm. over right parietal with Echyomois .Under these circumstances, this court is of the view that offence committed byappellants-accused Sarafaraj and Anwar would certainly fall under the purview of Section 304 Part-II read with Section34 of I.P.C., keeping in view the injuries inflicted by them to deceasedwhereas rest of the appellants can be convicted for commission of offence underSection 326/34 of I.P.C. Resultantly,all the aforesaid four appeals bearing No.612/03,618/03, 766/03 and 53/08 areallowed in part as mentioned above.