Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : If Found Reliable, Conviction Can Be Based On Dying Declaration Alone Without Consideration.
JUDGEMENT TITLE : Arjun Vs. State Of U.P. On 22/09/2008 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 845 OF 2004
CORAM : Hon'ble Barkat Ali Zaidi,J. And Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Criminal Appeal No. 845 Of 2004


Arjun .......................... Appellant
(In Jail)
Vs.

State Of U.P. ........................ Respondent

***************

Hon'ble B.A.Zaidi, J.
Hon'ble Vijay Kumar Verma, J.

(Delivered By Hon'ble Vijay Kumar Verma,J)
Challenge In This Appeal Is To The Judgment And Order Dated 31.01.2004, Passed In S.T. No. 390 Of 2002 By Sri Hira Lal, The Then Additional Sessions Judge, Court No. 11 Gorakhpur, Who Convicted The Appellant Arjun (hereinafter To Be Referred As 'the Accused') Under Section 302 Of Indian Penal Code (in Short 'the IPC') And Sentenced Him To Undergo Imprisonment For Life And To Pay A Fine Of Rs. 5000/- With Additional Imprisonment For Six Month In Default Of Payment Fine.
2. The Incident Resulting In The Death Of Ram Chandar, Younger Brother Of The Complainant Vishambhar Chaudhary, Resident Of Village Belma, P.S. Campierganj, District Gorakhpur, Occurred In The Intervening Night Of 20/21.05.2002 At About 2.00 A.m. First Information Report Was Lodged By The Complainant At P.S. Campierganj On 21.05.2002 At 11.45 A.m. The Case Of The Prosecution As Appearing From The Chik FIR Ext. Ka 2 And Statement Of P.W.1 Vishambhar Chaudhary, In Brief, Is That Accused Arjun And Deceased Ramchandra Were On Friendly Terms, But The Accused Was Suspecting That Ramchandra Has Developed Illicit Affairs With His Wife. It Is Alleged That When Ramchandra Was Sleeping At The Door Of His House In The Intervening Night Of 20/21.05.2002, Due To Enmity Of Developing Illicit Affairs With His Wife, The Accused Came At About 2.00 A.m. And Poured Acid On Ramchandra. On Hearing The Cry Of Ram Chandra, The Complainant, His Mother Smt. Prabhawati (P.W.2) And Brother-in-law (Bahnoi) Suresh (P.W.3) Awakened And Raised Noise, On Which Sita Ram S/o Surat, Parsu S/o Dhanai And Many Other People Of Village Also Awakened And Rushed Towards The Place Of Incident Flashing Torch Light. On Arrival Of These People, Arjun Fled Away After Throwing His Torch And Dibba Of Acid. When The Complainant And Other People Went Near To Ramchadra, He Told Them That Arjun With A View To Cause His Death Has Poured Acid On Him. When Ramchandra Was Being Carried For Treatment To Gorakhpur, He Succumbed To The Injuries In The Way. Thereafter, The Complainant And Other Persons Came Back To Their Village Carrying The Dead Body.
3. Leaving The Dead Body Of Ramchandra At The Door Of His House, The Complainant Went To P.S. Campierganj, Where He Handed Over The Written Report Ext. Ka 1, Which Was Got Scribed By Sri Ram S/o Lakhpat. On The Basis Of This Report, The Then Head Moharrir Shiv Shankar Tiwari P.W.4 Prepared Chik FIR Ext. Ka 2 And Registered A Case Under Section 302 IPC At Crime No. 91 Of 2002 Against The Accused Arjun On 21.05.2002 At 11.45 A.m. Entry In GD No. 20 (Ext. Ka 13) Regarding Registration Of The Case Was Made By P.W. 7 Om Praksh Dubey.
4. P.W.5 S.I. Uday Pratap Singh Was Posted As Station Officer At P.S. Campierganj. The Case Was Registered In His Presence. He Took Up The Investigation Himself And After Making Entry Of FIR And GD Of Registration In The Case Diary, He Reached The Place Of Incident And Conducted Inquest Proceedings On The Dead Body Of Ramchandra On 21.05.2002 Between 12.30 P.m. To 2.00 P.m., During Which, Inquest Report Ext. Ka 5 And Other Connected Papers Ext. Ka 6 To Ext. Ka 9 Were Prepared And Thereafter The Dead Body In Sealed Condition Was Sent Through The Constables Ranveer Singh And Mulchand Yadav For Post-mortem Examination, Which Was Conducted By Dr. R.S. Mishra (P.W.6) On 22.05.2002 At 3.30 P.m. According To The Post-mortem Report Ext Ka 12, The Following Ante Mortem Injuries Were Found On The Person Of Deceased:-
Chemical Burn Four Head To Too On All Sides Of Body, Trickeling Mark Of Chemical Present On Chest & Abdomen & On Legs Present. Burn Over Is Thickened, Blackened & Glistening. Lips Also Burnt. Tongue & Inner Area Of Mount Burnt & Ulceretion Present. On Opening Cesophagus M.m.-erosion Present, Ulceration Present. M.m.-congested. Stomach-m.m.- Congested. Erosion & Ulceretion Present. Small Inst.-m.m.-congested & Eroded. Laceration Present Burn Is Superficial To Deep.

In Internal Examination, Membranes, Brain, Pleura, Both Lungs, Spleen And Kidneys Were Found Congested. Buccal Cavity, Tongue And Pharynx, Oesophagus, Stomach And Small Intestine Were Also Found Congested And Erosion Ulcereted Were Present. Liver Was Also Congested.
The Death Was Caused Due To Shock As A Result Of Antemortem Chemical Burn. Time Of Death Was About One And Half Day At The Time Of Post-mortem Examination.
5. The Investigating Officer After Conducting Inquest Proceedings, Recorded The Statement Of The Complainant And Recovered One Torch, One Plastic Dibba, Burnt Cloth Of The Deceased As Well As Burnt Ash And Prepared Fard Ext. Ka 3. Thereafter, Site Plan Ext. Ka 4 Was Prepared After Making Spot Inspection. The Statements Of Witnesses Smt. Prabhawati, Sita Ram And Parsu Were Recorded On 23.05.2002 And After Completion Of The Investigation, Charge Sheet Ext. Ka 11 Was Submitted Against The Accused.
6. On The Case Being Committing To The Court Of Session For Trial, Charge Under Section 302 IPC Was Framed Against The Accused, To Which He Pleaded Not Guilty And Claimed To Be Tried.
7. The Prosecution In Order To Prove Its Case, Examined Seven Witnesses In All. P.W. 1 Vishambhar Chaudhary, P.W.2 Smt. Prabhawati And P.W. 3 Suresh Are Eyewitnesses Of The Incident Of Pouring Acid On The Deceased. P.W.1 Vishambhar Chaudhary Is Also The Complainant, Who Has Proved Written Report Ext. Ka 1 In His Statement Recorded On 22.10.2002. P.W. 4 Shiv Shankar Tiwari Has Proved Chik FIR Ext. Ka 2. P.W. 5 S.I. Uday Pratap Singh Is The Investigating Officer, Who Has Proved Various Papers As Mentioned Herein-above. P.W. 6 Dr. R.S. Mishra Has Proved Post Mortem Report Ext. Ka 12. P.W. 7 Om Prakash Dubey Has Proved Copy Of GD Ext. Ka 13 Regarding Registration Of The FIR.
8. In His Statement Recorded Under Section 313 Cr.P.C. The Accused Has Denied His Participation In The Alleged Incident And He Has Stated That He Has Been Falsely Implicated In This Case. It Is Further Stated By The Accused That In The Whole Village, He Is Alone Of His Caste And Due To His Being Helpless And Alone, He Has Falsely Been Roped In This Case. It Is Also Stated By The Accused That The Deceased Was Having Enmity With Many Other People.
9. The Accused Did Not Lead Any Evidence In Defence.
10. The Learned Trial Court Having Considered The Evidence On Record, Convicted And Sentenced The Accused As Mentioned Herein-above. Hence This Appeal.
11. We Have Heard Sri D.N. Wali, Learned Senior Advocate Assisted By Sri M.P. Yadav, Appearing For The Appellant-accused And Sri K.N. Bajpai Learned Additional Government Advocate For The State And Perused The Impugned Judgement And Entire Record Carefully.
12. Two Type Of Evidence Has Been Led By The Prosecution In This Case. First Type Of Evidence Is The Eyewitness Account Of Three Witnesses Namely Vishambhar Chaudhary (P.W.1), Smt. Prabhawati (P.W.2) And Suresh (P.W.3) And Second Type Of Evidence Is The Oral Dying Declaration Of The Deceased, Which Is Said To Have Been Made Just After The Incident Before The Aforesaid Witnesses.
13. We Have Carefully Gone Through The Statements Of The Alleged Eyewitnesses Named Above. On Careful Scrutiny Of Their Testimony, This Fact Is Borne Out That Actually They Had Not Seen The Accused Arjun Pouring Acid On The Deceased As Alleged By Them In Their Examination-in-chief. So Far As P.W.3 Suresh Is Concerned, He Is Merely A Chance Witness And His Presence At The Time Of Incident Is Doubtful. Although, The Name Of This Witness Is Mentioned In The FIR, But His Statement During Investigation Was Recorded By The Investigating Officer On 11.06.2002 I.e. After 20 Days Of The Incident. There Is Material Contradiction In The Statement Of This Witness And P. W.2 Smt. Prabhawati Regarding The Purpose Of His Visit On The Day Of Incident. In Her Statement P.W.2 Smt. Prabhawati Has Stated That Her Son-in-law Suresh Had Come To Her Village Without Any Purpose, Whereas P.W. 3 Suresh Has Invented A New Story In His Statement Saying That His Wife Had Left His Son In Her Mayaka And He Had Gone To Bring Him From There On The Date Of Incident. No Such Statement Was Made By This Witness During Investigation And Entire New Story To Show The Purpose Of Going To Village Belma On The Day Of Incident Has Been Introduced By This Witness For The First Time In Court. Hence For The Reason Mentioned Herein-above, It Is Not Safe To Place Reliance On The Testimony Of P.W.3.
14. Although P.W. 1 Vishambhar Chaudhary And P.W.2 Smt. Prabhawati Have Deposed In Their Examination-in-chief That They Had Recognized The Accused Arjun In Torch Light At The Time Of Incident And They Had Also Asked Him As To What He Has Done, But This Statement Made By These Witnesses In Their Examination-in-chief Has Been Given Go-bye In Cross-examination. P.W.2 Smt. Prabhawati Has Stated In Her Examination-in-chief Recorded On 13.01.2003 That When She Awakened At The Time Of Incident On Hearing The Cry Of Ramchandra, She Saw That Arjun Was Pouring Acid On Her Son And When She Went Near Ramchandra, She Asked Arjun What He Is Doing, On Which Arjun Fled Away Throwing His Torch And Dibba Of Acid. When Smt. Prabhawati Was Cross-examined By The Defence Counsel On This Point, She Has Stated That At The Time Of Incident She Was Sleeping And When Her Son Cried, Then She Awakened And Rushed Towards Him And Saw That Arjun Was Running Away In Garden Of Bananas. From This Statement Of Smt. Prabhawati, Which Finds Place At Page 21 Of The Paper-book, This Fact Is Borne Out That She Had Not Seen The Accused Pouring Acid On The Deceased, As Stated By Her In Her Examination-in-chief. No Fard Of The Torches Of These Witnesses, In The Light Of Which They Had Seen And Recognized The Accused, Was Prepared By The Investigating Officer. Therefore, It Was Not Possible For Smt. Prabhawati To Recognize The Accused At The Time When He Was Running Away In Banana Garden. No Place From Where Smt. Prabhawati Had Seen And Recognized The Accused Has Been Shown In The Site Plan Ext. Ka 4. It Has Come In The Impugned Judgment That The Incident Had Occurred On Naumi Tithi Of Sukla Paksh Of The Month Of Baishakh. According To The FIR, The Incident Had Taken Place At About 2.00 O'clock In The Night. At That Time, The Moon Might Have Set. Therefore, It Was Not Possible For Smt. Prabhawati To Identify The Accused Arjun At The Time When He Running Away In Bananas' Garden. For The Same Reasons, There Was No Occasion For P.W.1 Vishambhar Chaudhary Also To Identify The Accused At The Time Of Incident. Although, This Witness Also Has Stated In His Examination-in-chief That When He Awakened At About 2.00 O'clock In The Night On Hearing The Cry Of His Brother Ramchandra, He Saw In The Torch Light That Arjun Was Having One Dibba Of Acid In His Hand And When He Asked Arjun As To What He Has Done, The Accused Fled Away Through Bananas Garden After Pushing Him. On Being Cross-examined On This Point, He Has Stated In His Statement At Page 16 Of The Paper-book That When He Had Seen The Accused, He Was Running Away In The Bananas' Garden. This Witness Also Had Not Shown His Torch To The Investigating Officer, In The Light Of Which He Had Recognized The Accused At The Time Of Fleeing Away In Bananas' Garden. As Stated Above, Moon Light Might Not Be There At The Time Of Incident. As Such, There Was No Occasion For This Witness Also To Identify The Accused In The Night At About 2.00 O'clock At The Time Of Fleeing Away In Bananas' Garden, Which Was Thickly Planted As Stated By Him In His Statement At Page 14 Of The Paper Book. It Is Specifically Stated By Vishambhar Chaudhary At Page 14 Of The Paper-book That Banana Garden Was Thickly Planted In Which Big And Small Trees Of Bananas Were Situated. If Any Known Person Is Standing Nearby To Other Person, Then Such Person Can Be Identified In Open Place In The Stars' Light Also, But He Cannot Be Identified In Dark Night At The Time Of Running Away In The Garden. Therefore, For The Reasons Which We Have Mentioned Above, Eyewitness Account Of Identifying The Accused Arjun At The Time Of Incident By The Witnesses Vishambhar Chaudhary, Smt. Prabhawati And Suresh Is Not Worthy Of Reliance And We Cannot Confirm The Finding Recorded By The Learned Trial Court On This Point.
15. Now We Come To The Evidence Of Oral Dying Declaration, Which Is Said To Have Been Made By The Deceased Before The Witnesses Named Above. Although, For The Reasons Which We Have Mentioned Above, The Presence Of The Witness Suresh At The Time Of Incident Is Doubtful And Hence His Statement Regarding Dying Declaration Of The Deceased Also Can Not Be Relied Upon, But On The Basis Of The Reliable Testimony Of P.W.1 Vishambhar Chaudhary And His Mother P.W.2 Smt. Prabhawati, It Is Fully Proved Beyond Reasonable Doubt That When On Hearing The Cry Of Ramchadra, They Reached Near To Him, He Told Them That Arjun Has Poured Acid On Him. This Fact Is Mentioned In The First Information Report Also. Being The Brother And Mother Of The Deceased P.W. 1 Vishambhar Chaudhary And P.W.2 Smt. Prabhawati Are Natural Witnesses, Who Certainly Might Have Reached Near To The Deceased On Hearing His Cry At The Time Of Incident. It Is Not Disputed That Acid Was Poured On The Deceased. If Acid Is Poured On A Person, He Would Certainly Cry Due To Pain. It Has Come In The Statements Of P.W.1 And P.W.2 That When On Hearing The Cry Of Ramchandra, They Reached Near To Him, He Told Them That Arjun Has Fled Away After Pouring Acid On Him. There Is No Reason To Disbelieve This Statement Of These Witnesses. Nothing Material Has Been Elicited From Their Mouth In Cross-examination On This Point. Even A Suggestion Was Not Put To Smt. Prabhawati That The Deceased Was Not In The Position To Speak After Sustaining Acid Injury And No Cross-examination Was Made From This Witness On The Point Of Making Oral Dying Declaration To Her By The Deceased. Being The Mother Of Deceased, She Would Have Certainly Reached Near To Her Son Ramchandra On Hearing His Cry At The Time Of Incident. Specific Statement Has Been Made By P.W.2 That When She Awakened On Hearing The Cry Of Ramchandra And Went Near To Him, He Told Her That Arjun Has Poured Acid On Him. In The Like Manner, No Material Cross-examination Has Been Made From P.W.1 Vishambhar Chaudhary On The Point Of Oral Dying Declaration Of Deceased Ramchandra Just After Incident. This Witness Also Has Specifically Stated In His Statement That When He Awakened On Hearing The Cry Of His Brother Ramchandra And Went Near To Him, He Told That Arjun Has Fled Away Pouring Acid On Him. On Being Cross-examined By The Defence Counsel, The Witness Has Specifically Stated At Page 17 Of The Paper-book That After Sustaining Acid Injury, Ramchandra Was Crying Saying 'arey Bap, Arey Bap' And He Cried For About 20 Minutes And Thereafter He Stopped To Speak. From This Statement Of P.W.1, This Fact Is Borne Out That After Sustaining Acid Injuries, The Deceased Remained In The Position To Speak For About 20 Minutes. This Fact Has Been Corroborated By Dr. R.C. Mishra (P.W.6) Also, Who Has Stated That After Sustaining Acid Injuries, The Injured Remains In The Position To Speak In The Beginning, But As Soon As The Acid Starts To Show Its Effect, The Affected Person Due To Suffering From Pain, Becomes Unconscious Or Dies At One Stage. A Specific Question Was Put To Dr. Mishra That If Acid Is Poured In The Mouth Of A Person, Then He Would Not Remain In The Position To Speak. In Answer To This Question, Dr. Mishra Has Stated That In Such Situation The Injured Can Speak In The Beginning. In Answer To A Suggestion Put To Dr. Mishra On Behalf Of Accused, It Is Specifically Stated By Him That It Is Incorrect To Say That The Injured Would Become Unconscious Immediately After Pouring Acid In The Mouth And Would Not Be Able To Speak. On The Basis Of The Aforesaid Statement Of Dr. Mishra, This Fact Is Established That On Pouring Acid Even In The Mouth Of A Person, He Would Not Become Unconscious Immediately. It Is Also Borne Out From His Statement That On Pouring Acid In The Mouth, The Injured Can Speak In The Beginning. On The Basis Of Cogent And Consistent Evidence Of P.W. 1 And P.W. 2, It Is Proved Beyond Any Doubt That On Sustaining Injury Of Acid, The Deceased Ramchandra Was Speaking In The Beginning And He Had Told These Witnesses That Arjun Has Fled Away After Pouring Acid On Him. The Learned Trial Court Has Rightly Believed The Testimony Of These Witnesses On This Point And We Too Are Not Inclined To Disturb This Findings.
16. The Aforesaid Statement Made By The Deceased Ramchandra Is Admissible In Evidence Under Section 32 Of The Indian Evidence Act. "The General Rule Is That All Oral Evidence Must Be Direct Viz., If It Refers To A Fact Which Could Be Seen It Must Be The Evidence Of The Witness Who Says He Saw It, If It Refers To A Fact Which Could Be Heard, It Must Be The Evidence Of The Witness Who Says He Heard It, If It Refers To A Fact Which Could Be Perceived By Any Other Sense, It Must Be The Evidence Of The Witness Who Says He Perceived It By That Sense. Similar Is The Case With Opinion. These Aspects Are Elaborated In Section 60. The Eight Clauses Of Section 32 Are Exceptions To The General Rule Against Hearsay Just Stated. Clause (1) Of Section 32 Makes Relevant What Is Generally Described As Dying Declaration, Though Such An Expression Has Not Been Used In Any Statute. It Essentially Means Statements Made By A Person As To The Cause Of His Death Or As To The Circumstances Of The Transaction Resulting In His Death. The Grounds Of Admission Are: Firstly, Necessity For The Victim Being Generally The Only Principle Eye-witness To The Crime, The Exclusion Of The Statement Might Deflect The Ends Of Justice; And Secondly, The Sense Of Impending Death, Which Creates A Sanction Equal To The Obligations Of An Oath. The General Principle On Which This Species Of Evidence Is Admitted Is That They Are Declarations Made In Extremity, When The Party Is At The Point Of Death And When Every Hope Of This World Is Gone, When Every Motive To Falsehood Is Silenced, And The Mind Is Induced By The Most Powerful Considerations To Speak The Truth; A Situation So Solemn And So Lawful Is Considered By The Law As Creating An Obligation Equal To That Which Is Imposed By A Positive Oath Administered In A Court Of Justice. These Aspects Have Been Eloquently Stated By Lyre LCR In R.V. Wood Cock. Shakespear Makes The Wounded Melun, Finding Himself Disbelieved While Announcing The Intended Treachery Of The Dauphin Lewis Explain:
"Have I Met Hideous Death Within My View,
Retaining But A Quantity Of Life,
Which Bleeds Away Even As A Form Of
wax,
Resolveth From His Figure Gainst The
fire?
What Is The World Should Make Me
now Deceive.
Since I Must Lose The Use Of All Deceit?
Why Should I Then Be False Since It Is True,
That I Must Die Here And Live Hence By Truth?"
(See King John, Act 5, Sect.4)
The Principle On Which Dying Declaration Is Admitted In Evidence Is Indicated In Legal Maxim "nemo Moriturus Proesumitur Mentiri- A Man Will Not Meet His Maker With A Lie In His Mouth." (Smt. Shakuntala Vs. State Of Haryana, 2007 (59)ACC 513 (Supreme Court).

17. From The Aforesaid Statement Of Deceased Ramchandra, Which Comes In The Category Of His Oral Dying Declaration, It Is Fully Proved Beyond Reasonable Doubt That It Was The Accused Arjun, Who Had Poured Acid On Him. From The Site Plan Ext Ka 4, It Is Seen That The Deceased Was Sleeping In The Fateful Night In Open Place. The Accused Arjun Was Previously Well Known To The Deceased. Just As The Accused Would Have Started To Pour Acid On The Deceased, He Would Have Certainly Awakened Due To The Pain Caused By Acid Injuries. As We Have Stated Earlier Also, A Known Person Can Be Recognized In Open Place Even In The Light Of Stars. Therefore, There Was No Difficulty For The Deceased To Identify The Accused At The Time Of Incident. Had Any Other Person Poured Acid On The Deceased, Then Leaving That Culprit, The Deceased Would Not Have Falsely Implicated The Accused At The Time When There Was Possibility Of His Death Being Caused Due To The Injuries Sustained By Him. The Witnesses Vishambhar Chaudhary And Smt. Prabhawati Also Would Not Falsely Roped Innocent Person Leaving The Real Culprit, As Innocent Persons Are Not Generally Roped In Heinous Crimes By The Near Relatives Of Deceased Or Victim. It Is Well Settled Principle Of Law By A Catena Of Decisions That If Found Worthy Of Reliance, The Dying Declaration Alone Is Sufficient To Base The Conviction Without Any Corroboration.
18. Regarding The Testimony Of The Witnesses Vishambhar Chaudhary And Smt. Prabhawati, It Was Contended By The Learned Counsel For The Appellant That Being The Brother And Mother Of The Deceased, Their Testimony In The Absence Of The Evidence Of Any Independent Witness Could Not Be Relied Upon To Convict The Accused. We Are Not At All Impressed With This Contention. The Law Is Well Settled That If The Testimony Of Any Witness Is Found Worthy Of Reliance, Then His Testimony Can Not Be Brushed Aside On The Ground That He Is Related To The Deceased Or Victim. Reference In This Regard May Be Made To The Case Of Dalip Singh And Others Vs. State Of Punjab (AIR 1953 SC 364), In Which It Has Been Held As Under By The Hon'ble Apex Court:-
"A Witness Is Normally To Be Considered Independent Unless He Or She Springs From Sources Which Are Likely To Be Tainted And That Usually Means Unless The Witness Has Cause, Such As Enmity Against The Accused, To Wish To Implicate Him Falsely. Ordinarily A Close Relation Would Be The Last To Screen The Real Culprit And Falsely Implicate An Innocent Person. It Is True, When Feelings Run High And There Is Personal Cause For Enmity, That There Is Tendency To Drag In An Innocent Person Against Whom A Witness Has A Grudge Along With The Guilty, But Foundation Must Be Laid For Such A Criticism And The Mere Fact Of Relationship Far From Being A Foundation Is Often A Sure Guarantee Of Truth. However, We Are Not Attempting Any Sweeping Generalization. Each Case Must Be Judged On Its Own Facts.

19. Again In Masalti And Others V. State Of U.P., AIR 1965 SC 202, The Hon'ble Apex Court Observed As Under:-
"But It Would, We Think, Be Unreasonable To Contend That Evidence Given By Witnesses Should Be Discarded Only On The Ground That It Is Evidence Of Partisan Or Interested Witnesses....................The Mechanical Rejection Of Such Evidence On The Sole Ground That It Is Partisan Would Invariably Lead To Failure Of Justice. No Hard And Fast Rule Can Be Laid Down As To How Much Evidence Should Be Appreciated. Judicial Approach Has To Be Cautious In Dealing With Such Evidence; But The Plea That Such Evidence Should Be Rejected Because It Is Partisan Cannot Be Accepted As Correct."

20. The Above Decision Has Been Followed In Guli Chand And Others V. State Of Rajasthan 1974(3) SCC 698, In Which Vadivelu Thevar V. State Of Madras AIR 1957 SC 614 Was Also Relied Upon.
21. The Following Observations Made By The Hon'ble Apex Court In Israr Vs. State Of U.P. (2005 (51) ACC 113) In Para 12 Of The Judgement Are Also Worth Mentioning:-
".........Relationship Is Not A Factor To Affect Credibility Of A Witness. It Is More Often Than Not That A Relation Would Not Conceal The Actual Culprit And Make Allegations Against An Innocent Person. Foundation Has To Be Laid If Plea Of False Implication Is Made. In Such Cases, The Court Has To Adopt A Careful Approach And Analyse Evidence To Find Out Whether It Is Cogent And Credible."

21. The Above Position Has Been Highlighted Again In Galivenkataiah Vs. State Of A.P. 2008 (60) ACC 370, In Which Reference Has Been Made To Some Other Cases Also.
22. The Dying-declaration Of The Deceased Was Assailed By Learned Counsel For The Appellant Contending That Owing To The Injuries Sustained By The Deceased He Would Not Have Been Able To Speak After The Incident. For This Contention, Reliance Has Been Placed On Manohar Singh Etc. Vs. State Of Rajasthan & Others Etc AIR 1998 SC 2912. We Have Already Held That After Sustaining Injuries Of Acid, The Deceased Ramchandra Remained In The Position To Speak For About 20 Minutes And During That Period He Had Told His Mother Smt. Prabhawati And Bother Vishambhar Chaudhary That Arjun Has Poured Acid On Him. Having Regard To The Evidence Produced By The Prosecution In The Present Case, The Observations Made By Hon'ble Apex Court In Manohar Singh Case (supra) Does Not Render Any Assistance To The Appellant.
23. It Was Vehemently Contended By Sri K.N. Bajpai, Learned Additional Government Advocate, That There Was A Very Strong Motive In This Case For The Accused Arjun To Commit The Alleged Offence. The Contention Of Sri Bajpai Was That The Accused And Deceased Were On Friendly Terms As Stated By P.W. 1, But The Deceased Developed Illicit Intimacy With The Wife Of Accused, Due To Which It Was Very Natural For The Accused To Take Revenge From The Deceased, As No Person Would Generally Tolerate Illicit Relationship Of Other Person With His Wife. It Was Also Submitted By Sri Bajpai That The Mode, Which Was Adopted To Take Revenge From The Deceased, Also Shows That Only The Accused Arjun Could Commit This Offence By This Mode, Because He Had Special Grievance Against The Deceased. Having Given Our Thoughtful Consideration, We Find Force In The Aforesaid Submissions Made By The Learned Additional Government Advocate. As Is Evident From The Statements Of P.W.1 And P.W.2, The Accused Was Suspecting That The Deceased Had Developed Illicit Affairs With His Wife. From The Evidence, This Fact Is Also Borne Out That The Deceased And Accused Both Were On Friendly Terms, But Taking Undue Advantage Of Friendship, The Deceased Developed Illicit Relation With The Wife Of The Accused. In Such Situation, The Accused Certainly Might Have Felt Aggrieved And Humiliated. Therefore, We Are Inclined To Accept The Submission Of Learned Additional Government Advocate That The Accused Arjun Had Very Strong Motive To Commit The Alleged Offence. The Manner In Which The Offence Was Committed Also Shows That Only The Accused Could Adopt This Method With A View To Teach A Lesson To The Deceased.
24. Drawing Our Attention Towards Sri Krishna Master & Others Vs. State Of U.P. 2002 (2) JIC 379, It Was Submitted By The Learned Counsel For The Appellant That The FIR Of This Case Was Lodged After Consultation And With The Help Of Investigating Officer, Which Makes The Entire Case Doubtful. This Argument Is Based On The Statement Of P.W.1 Vishambhar Chaudhary, Who Has Stated In His Statement At Page 13 Of Paper-book That When He Reached At Police Station, He Met The Sub Inspector (Darogaji) To Whom He Narrated About The Incident, On Which Darogaji Scribed The Report, Which Was Read Over To Him And His Signature Was Obtained On That Report. We Have Carefully Gone Through The Statement Of This Witness. Although, Aforesaid Statement Has Been Made By P.W. 1, But On The Same Page, It Is Specifically Stated By Him That Darogaji Did Not Got Any Report Scribed By Sri Ram. The Chik FIR Ext Ka 2 Was Prepared By The Then Head Moharrir Shiv Shankar Tiwari (P.W.4) On The Basis Of The Written Report Ext. Ka 1, Which Was Scribed By Sri Ram S/o Lakhpat. In Answer To A Suggestion Put To P.W. 1, It Is Stated By Him At Page 17 Of The Paper-book That It Is Incorrect To Say That The Report Ext. Ka 1 Was Got Scribed By Darogaji. As Such, On The Basis Of The Entire Statement Of P.W.1, It Is Fully Proved That Written Report Ext. Ka 1 Was Got Scribed From Sri Ram By Him And Not By Any Sub-inspector Or Investigating Officer. Therefore, Sri Krishna Mastar Case (supra) Is Not Helpful To The Appellant In Present Case.
25. Regarding The FIR, It Was Further Submitted By The Learned Counsel For The Appellant That Non-examination Of Sri Ram, Scribe Of Written Report Ext. Ka-1, Is Fatal To The Prosecution Case. For This Contention Reliance Has Been Placed Of The Case Of Dhanik Ram Vs. State 1983 (2) ACC 350. There Is No Dispute Regarding The Observation Made By The Division Bench Of This Court In Dhanik Ram Case (supra), But In Present Case, The Reliable Testimony Of P.W.1 And P.W. 2 Regarding Dying Declaration Of The Deceased Cannot Be Discarded Merely Due To Non-examination Of The Scribe Of The Written Report. In The Case Of Dhanik Ram (supra), The Informant Was Totally Illiterate And He Had Put His Thumb Impression On The Written Report, Which Was Scribed By Some Other Person, Who Was Not Examined During Trial. In That Context It Was Held By Division Bench That Non-production Of The Scribe, Who Prepared The FIR, Tells Heavily On Prosecution, As In Their Absence It Was Not Possible To Ascertain What Exactly Was The Version Of The Informant. In Instant Case, The First Informant Vishambhar Chaudhary (P.W.1) Is Educated Person, Who Has Signed The Written Report Ext. Ka 1, Which Was Scribed On His Dictation By Sri Ram S/o Lakhpat. Therefore, In Our Opinion, Non-examination Of Sri Ram Is Not Fatal To The Prosecution Case In Instant Case.
24. Next Submission Made By Learned Counsel For The Appellant Was That The Accused Would Not Go To Commit Such Crime In The Night Without Concealing His Identity And Hence On This Ground, The Complicity Of The Accused In The Alleged Incident Becomes Doubtful. The Contention Of The Learned Counsel Was That A Known Person Would Not Commit Such A Crime In The Night Without Concealing His Identity. For This Contention, Reliance Has Been Placed On The Case Of Ram Iqbal & Others Vs. State Of U.P. 1987 (24) ACC 428. We Find No Force In This Contention. Heinous Crimes Like Murder Etc. Are Being Committed In The Day And Night Without Concealing Identity By The Culprits. The Accused Had Not Come To Commit Robbery In The House Of The Complainant Or Deceased, But He Had Come To Take Revenge From A Person, Who In The Garb Of Friendship, Had Developed Illicit Relation With His Wife. Therefore, The Dying Declaration Of The Deceased Cannot Be Discarded On The Ground That The Accused Did Not Conceal His Identity.
25. Lastly, It Was Submitted By The Learned Counsel For The Appellant That If The Entire Version Of The Prosecution Is Accepted To Be True, Even Then The Offence Would Not Travel Beyond Section 304 IPC. The Contention Of The Learned Counsel Was That There Was No Intention On The Part Of The Accused To Commit The Murder Of The Deceased And Criminal Act In Question Appears To Have Been Committed For Taking Revenge From The Deceased, Who Developed Illicit Intimacy With The Wife Of The Accused, And Hence The Offence Of Murder Punishable Under Section 302 IPC Would Not Be Made Out In This Case, Because Neither There Was Any Intention On The Part Of The Accused To Commit The Murder Of Deceased, Nor The Injuries Sustained By The Deceased Were Sufficient In The Ordinary Course Of Nature To Cause The Death. Having Given Our Thoughtful Consideration To This Aspect, We Find Force In This Submission Of The Learned Counsel For The Appellant. Culpable Homicide Is Defined Under Section 299 I.P.C., Which Reads Thus :-
"299.Culpable Homicide- Whoever Causes Death By Doing An Act With The Intention Of Causing Death, Or With The Intention Of Causing Such Bodily Injury As Is Likely To Cause Death, Or With The Knowledge That He Is Likely By Such Act To Cause Death, Commits The Offence Of Culpable Homicide".

Section 300 IPC Defines Murder As Under:-

300. Murder- Except In The Cases Hereinafter Excepted, Culpable Homicide Is Murder, If The Act By Which The Death Is Caused Is Done With The Intention Of Causing Death, Or-
Secondly- If It Is Done With The Intention Of Causing Such Bodily Injury As The Offender Knows To Be Likely To Cause The Death Of The Person To Whom The Harm Is Caused, Or-
Thirdly- If It Is Done With The Intention Of Causing Bodily Injury To Any Person And The Bodily Injury Intended To Be Inflicted Is Sufficient In The Ordinary Course Of Nature To Cause Death, Or-
Fourthly- If The Person Committing The Act Knows That It Is So Imminently Dangerous That It Must, In All Probability, Cause Death Or Such Bodily Injury As Is Likely To Cause Death, And Commits Such Act Without Any Excuse For Incurring The Risk Of Causing Death Or Such Injury As Aforesaid."

26. According To The Post-mortem Report Ext. Ka 12, Although The Deceased Died Due To Shock As A Result Of Ante Mortem Chemical Burn, But It Is Nowhere Stated By Dr. R.S. Mishra (P.W.6), Who Conducted Autopsy On The Dead Body Of Deceased, That Ante Mortem Injuries Were Sufficient In The Ordinary Course To Cause The Death. Therefore, In Our Opinion Clause 'thirdly' Or Any Other Clause Of Section 300 IPC Would Not Be Attracted In This Case. From The Evidence On Record, This Fact Is Borne Out That The Deceased Ramchandra And Accused Arjun Were On Friendly Terms, But Taking Undue Advantage Of The Friendship, The Deceased Developed Illicit Relation With The Wife Of The Accused. The Traditional Modes Of Committing Murder Like Shooting Or Stabbing Etc. Were Not Adopted By The Accused And He Poured Acid On The Deceased. Had The Accused Intended To Commit The Murder Of Deceased, He Could Either Shoot Him By Managing A Country Made Pistol Or Would Have Committed His Murder By Causing Injuries To Him By Traditional Weapons Like Axe, Farsa Or Knife Etc., But The Accused Did Not Choose To Use Any Of These Weapons. Pouring Acid On The Deceased Itself Shows That Intention Of The Accused Was To Disfigure The Body Of Deceased With A View To Take Revenge Of Betraying The Trust By Developing Illicit Relation With His Wife. Therefore, Having Regard To The Circumstances In Which The Alleged Criminal Act Was Committed, In Our Considered Opinion, The Offence Committed By The Accused Would Not Travel Beyond Section 304 Part II IPC, As By Pouring Acid On The Deceased, The Accused Must Be Knowing That This Act Is Likely To Cause Death.
27. The Accused-appellant Is Continuously In Jail Since 07.06.2002. Keeping In View The Circumstances In Which The Alleged Offence Was Committed, The Ends Of Justice Would Meet, If The Accused-appellant Is Sentenced To Undergo Rigorous Imprisonment For Seven Years Only.
28. Consequently, The Appeal Is Partly Allowed. Setting Aside The Conviction And Sentence Of The Appellant-accused Arjun Under Section 302 IPC, He Is Convicted Under Section 304 Part II IPC And Sentenced To Undergo Rigorous Imprisonment For Seven Years Only. The Impugned Judgment And Order Stand Modified Accordingly.
The Appellant Is Undergoing Sentence In Jail. He Shall Be Kept There To Serve Out The Remaining Sentence As Modified By Us.
The Office Is Directed To Return The Trial Court Record Along-with A Copy Of This Judgement Expeditiously For Necessary Action.

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