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2012 DIGILAW 54 (ALL)

KAROO @ KALI CHARAN v. STATE OF U. P.

2012-01-06

ASHOK SRIVASTAVA, DHARNIDHAR JHA

body2012
JUDGMENT By the Court.—Heard Sri Akhilesh Singh, learned counsel for the appellant and the learned AGA appearing for the State. 2. The present appeal arises out of the judgment dated 14.12.1982 passed by the learned VIII Additional Sessions Judge, Mainpuri in Session trial No. 391 of 1982. By the impugned judgment the solitary appellant Karoo alias Kali Charan was convicted of committing offence under Section 302 I.P.C. and after being heard on sentence was directed to undergo rigorous imprisonment for life. The appellant challenges his conviction before us. 3. Three other accused, namely, Ravi, Dashrath and Jamadar were also charged with the appellant under Section 302 and 302/34 I.P.C. by the learned trial judge and were acquitted by the same judgment. 4. The facts of the case was that a lady of the family of the informant-P.W.1 was allegedly misbehaved by some of the accused persons. That had initiated a chain of reaction in the village so much so that some sort of ill-will had cropped up between the parties. It is alleged that on 24.6.1982 at about 8.00 p.m., the present appellant alongwith the acquitted accused came at the particular place which was in the form of a raised plateform where the informant and the deceased Bhagwan Das were sitting together after having taken their meals. The appellant is said to be armed with country made gun. It is stated that the appellant and three acquitted accused commanded the deceased Bhagwan Das to accompany them and on his objection to this, the appellant caught hold of the deceased Bhagwan Das and moved with him in a particular direction. The informant stated that he alongwith his family members followed the accused persons and during that course implored them to release the deceased Bhagwan Das. But the deceased was continued to be taken away. The informant stated that on account of the act of the appellant and his companion, he and others were frightened so much so that they ran in the plot the of one Ram Singh and Khet Singh both sons of Kamal Singh and started raising alarm so as to solicit the assistance of the villagers by shouting that this appellant and his companions were taking away his brother. While the informant was raising the hue and cry, it is alleged by him, he heard the sound of gun-shot and sensing that his brother Bhagwan Das had been shot ran into the direction from which the sound had emanated. On reaching a particular place, the informant and the witnesses accompanying him, found Bhagwan Das lying on the ground who was injured by a gun-shot. He and others put him on a cot so as to shifting him to the hospital. It was stated by the informant that on arrival of the witness the deceased was stating to him that it was this appellant who had fired the shot and injured him. 5. The informant stated that while the deceased was being carried to the hospital and before he could have been checked up by the doctor, he breathed his last and the dead body of the deceased Bhagwan Das was lying in the hospital. 6. The informant came to the police station and filed a written report Ex. Ka-1 and on that basis the first information report Ex. Ka-2 was drawn up and investigation was taken up by PW-4, S.I. Amirullah who was officer in charge of the police station Ghiror. During the course of investigation he inspected the place of occurrence and seized blood stained earth and clothes found on the dead body and also forwarded the dead body to PW-5, Dr. A.K. Srivastava, for post mortem examination. PW-5 during the course of post mortem examination found gun shot entry wound 2 cm x 2 cm cavity deep on left side of chest up to abdomen, 8 cm below nipple, surrounded by small multiple gun shot wounds, each of 2 cm x 2 cm and were upto cavity deep which were spread over in an area of 9 cm x 7 cm. Blood clots were found present in and round round the wound and in the opinion of the PW-5 death had been caused on account of gun-shot injuries inflicted to the deceased and further that the injuries were sufficient in the ordinary course of nature to cause death. 7. PW-4 examined the witnesses also and finding materials sufficient set up four accused persons for their trial, and accordingly, while, three others were acquitted, the appellant was convicted of the charge. 8. 7. PW-4 examined the witnesses also and finding materials sufficient set up four accused persons for their trial, and accordingly, while, three others were acquitted, the appellant was convicted of the charge. 8. While hearing the present appeal, we found out that the appeal was to turn on a very limited point as to whether the oral dying declaration which was allegedly made by the deceased to PWs-1, 2 and 3 just after they have arrived at the place of occurrence, could be sufficient to be relied upon for upholding the judgment of conviction and sustaining the order of sentence. We may point out that PWs-1, 2 and 3 out of which PW-1 is the informant, have consistently stated in their examination in chief that as soon as they reached at the scene of occurrence they found Bhagwan Das lying injured and he was making statement that it was this appellant Karoo alis Kali Charan who had shot and injured him. This statement is admissible under Section 32(1) of the Indian Evidence Act. But, merely on that account it may not be prudent to uphold the conviction, especially, when one of the witness namely PW-1, informant of the case, Shri Hari who was making statement in paragraph 10 that when reached the place of occurrence where the deceased Bhagwan Das was found lying injured, he found him unconscious and that state of unconsciousness of the deceased Bhagwan Das continued till he died. So far as PW-2, Sri Teekam is concerned he was also stating in his evidence, the same facts as were stated by PW-1 Sri Hari that the deceased Bhagwan Das stated to him that it was this appellant who had shot and injured him. But his attention appears to be drawn in paragraph 3 with the suggestion to him as to why he was not making this statement to the police as in his examination in chief which indicated as if it was with a view that PW-2 was disclosing before the Court that he had heard from the deceased that it was this appellant who had shot and injured him. So far as evidence of PW-3 is concerned, cross-examination in paragraph 3 of PW-3 Ram Singh may indicate that when he was being examined in the Court as witness he was not in a position to properly and correctly point out some of the structures which were present outside the Court room. He was virtually admitting frailty of his eye sight and being incapacitated on that account. What we find is that if an old man like PW-3 was incapacitated by his eye sight then, firstly he would not have ventured out of his house to rush out to the place of occurrence at 8.00 p.m. Secondly, if he had come out of curiosity or excitement, then his version of reproducing the dying declaration made by the deceased to the witnesses runs completely contrary to the state of health as was stated to by PW-1. 9. We may recall that PW-1 had stated in paragraph 10 of his cross-examination that the deceased was found unconscious when he reached at the scene of occurrence and that state of unconsciousness of the deceased continued till he breathed his last. As against that, PW-3 had stated that the deceased was talking always and was making statement to the witnesses. These two contrary statements create a situation of doubt, as regards the state of health of the deceased of making the statement as was claimed by the witnesses having been made to them. 10. We are quite conscious that if there could be two views of the evidence then the view which could be in favour of the accused has to be preferred. In that view of the matter, what we find is that the evidence of PWs-1 and 3, as regards situation of contradiction raising the probability that the deceased might not be in a position of making the statement. If this could be the conclusion, then one of the most important features of acceptability of the evidence of dying declaration that the deceased must be in good state of physical and mental health so as to making the statement appears doubtful and on that account, the benefit of doubt has to accrue to the appellant. 11. In the result, we allow the appeal, set aside the judgment of conviction and sentence passed against the appellant. He is acquitted of the charge for which he was found guilty. Appellant is on bail. 11. In the result, we allow the appeal, set aside the judgment of conviction and sentence passed against the appellant. He is acquitted of the charge for which he was found guilty. Appellant is on bail. He shall stand absolved of the liability of his bond. —————