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Madhya Pradesh High Court · body

2013 DIGILAW 809 (MP)

Rakesh Patel v. State of M. P.

2013-07-16

AJIT SINGH, B.D.RATHI

body2013
JUDGMENT B.D. Rathi, J. The above named eight appellants have been convicted for an offence under Section 302/149 of the Indian Penal Code for committing the murder of Santu alias Santosh. They have also been convicted for offences under Sections 307/149, 323/149, 324/149, 325/149 and 452 of the Indian Penal Code and sentenced to different terms of imprisonment with fine stipulation. Apart from this, appellant Nos. 3, 4, 7 and 8 have been convicted for an offence under Section 147 of the Indian Penal Code and appellant Nos. 1, 2, 5 and 6 have been convicted under Section 148 of the Indian Penal Code and sentenced to six months and one year rigorous imprisonment respectively. It is to be noted that in all 15 accused persons were prosecuted and the Trial Court has acquitted seven of them. 2. According to the prosecution case, 6/7 months prior to the date of incident appellant Nos. 1 and 2 had reportedly committed gang rape on the cousin of Bhumanideen (P.W. 7) in which Santu alias Santosh and Ratiram (P.W. 8) were important witnesses. The appellants and their family members were, therefore, exerting pressure on them to soften their stand but they declined to do so. On 13-5-2003 at about 5.00 p.m. Santu alias Santosh, Bhumanideen and Ratiram were sitting together in the house of Brajlal (P.W. 6). At that time Brajlal left the house to attend the call of nature in the field. After sometime, call for help from the field of Brajlal was heard. Immediately thereafter the accused persons, including the appellants, armed with weapons like lathi, farsa and axe entered the house of Brajlal and caused injuries to Santu alias Santosh, Bhumanideen, Brajlal and Ratiram. The accused persons also caused injuries to Tantu Bai (P.W. 15) and Amrish (P.W. 16) when they intervened. All the victims were carried in a motor vehicle to the Primary Health Centre and on way Bhumanideen lodged the First Information Report at Police Station, Rajnagar, District Chhatarpur. In the Health Centre, Dr. Suresh Jataw (P.W. 19) provided medical treatment to the victims. There Naib Tehsildar, R.L. Bagri (P.W. 4) also recorded the dying declaration (Exh. P-2) of Santu alias Santosh who later succumbed to the injuries on 14-5-2003. 3. The police, after investigation, charge-sheeted 18 accused persons for committing the murder of Santu alias Santosh with a common object after forming an unlawful assembly. There Naib Tehsildar, R.L. Bagri (P.W. 4) also recorded the dying declaration (Exh. P-2) of Santu alias Santosh who later succumbed to the injuries on 14-5-2003. 3. The police, after investigation, charge-sheeted 18 accused persons for committing the murder of Santu alias Santosh with a common object after forming an unlawful assembly. The police also charge-sheeted them for attempting to commit the murder of Bhumanideen and causing injuries to Brajlal, Ratiram, Tantu Bai and Amrish apart from offences under Sections 452, 147 and 148 of the Indian Penal Code. 4. During the trial, the accused persons pleaded not guilty to the charges and contended that they had been falsely implicated. 5. The Trial Court, after appreciating the evidence and materials brought on record, disbelieved the testimony of injured witnesses Bhumanideen, Brajlal, Ratiram, Tantu Bai and Amrish as well as of the eye-witnesses namely Shyam Bai (P.W. 1), Nepal Singh (P.W. 10), Kalicharan (P.W. 14), Rampal Singh (P.W. 17) and Jitendra Singh (P.W. 18). The Trial Court held that they are not truthful witnesses because their evidence did not corroborate with the medical evidence (injury reports). The Trial Court even held that the First Information Report was not recorded by Bhumanideen at the police station because he was unconscious. The Trial Court, however, relied upon the dying declaration of Santu alias Santosh and convicted the appellants because their names were found in it. The remaining seven co-accused persons were acquitted as their names did not find place in the dying declaration. 6. The State has not challenged the acquittal of seven co-accused persons by filing any appeal. And since conviction of the appellants is based solely on the dying declaration of Santu alias Santosh we, in the present appeal, have to decide whether the dying declaration inspires full confidence to uphold their conviction of committing the murder. 7. On examining the dying declaration we find that it was recorded by Naib Tehsildar, R.L. Bagari on 13-5-2003 in which Santu alias Santosh has named the appellants as his assailants. We also find that its recording commenced at 11.00 p.m. in the Primary Health Centre, Rajnagar, and ended at 11.15 p.m. The dying declaration at the beginning also bears a brief (one line) certificate of Dr. Suresh Jawat that Santu alias Santosh was in a condition to give statement. But the same doctor in his detailed injury report (Exh. We also find that its recording commenced at 11.00 p.m. in the Primary Health Centre, Rajnagar, and ended at 11.15 p.m. The dying declaration at the beginning also bears a brief (one line) certificate of Dr. Suresh Jawat that Santu alias Santosh was in a condition to give statement. But the same doctor in his detailed injury report (Exh. P-59), of Santu alias Santosh prepared on the same day, i.e., 13-5-2003 and at the same time 11.15 p.m. has clearly mentioned that he was unconscious and vomiting. In preparing this injury report, the doctor must have taken at least 15 minutes. Not only this, the doctor in Paragraph 22 of his evidence has also admitted that all the victims were brought to the hospital in a bus at 10.30 p.m. and Santu alias Santosh was in an unconscious state. Therefore, it becomes extremely doubtful that Santu alias Santosh was in a fit condition to make any statement at 11.15 p.m. There is yet another reason to disbelieve the dying declaration. The dying declaration neither bears the signature nor the thumb impression of Santu alias Santosh. No explanation has been given by the prosecution that Santu alias Santosh was not in a position to either sign it or given his thumb impression. The dying declaration which is imp regnant with so many suspicious circumstances can hardly be sufficient as an unimpeachable document for safely basing the conviction of the appellants. 8. We are, therefore, unable to agree with the Trial Court that the appellants, after forming an unlawful assembly with a common object, committed the murder of Santu alias Santosh. We accordingly set aside their conviction for an offence under Section 302/149 of the Indian Penal Code. We also set aside the conviction and sentences of the appellants for attempting to commit the murder of Bhumanideen and causing grievous injuries and injuries to Brajlal, Ratiram, Tantu Bai and Amrish. This is because in the dying declaration there is not even a whisper regarding these offences having been committed by them. And, as already stated above, the Trial Court has disbelieved the evidence of victims and eye-witnesses. 9. In the result, the appeal is allowed. The appellants be released immediately from jail if not wanted in any other case. Appellant No. 6-Betu Patel is reportedly on bail. He need not surrender to custody.