Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Dying Declaration Can Be Accepted Only When It Is Free From All Infirmities, Embellishment And Tutoring/appeal Allowed As The Same Is Missing.
JUDGEMENT TITLE : Asha Ram & Another Vs. State Of U.P. On 04/01/2012 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 1689 OF 1981
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.53
AFR

Criminal Appeal No.1689 Of 1981

Asha Ram & Another..........................Appellants

Versus

State Of U.P. .................................Respondents.

Hon'ble Vinod Prasad, J.

Two Appellants, Father And Son, Asha Ram And Suresh, Have Challenged Their Conviction Under Section 304 IPC With Implanted Sentence Of Five Years, Recorded By Session's Judge, Mainpuri In Two Connected S.T.s, No.129/1980, State Vs. Asha Ram And S.T. No.130 Of 1980, State Vs. Suresh, Vide Impugned Judgement And Order Dated 28.7.1981, In The Instant Appeal.
Stated Briefly, Unfolded Background Facts Were That Jauhari And Mooley Were Real Sibling Brothers. Appellant Asha Ram Is The Son Of Jauhari Whereas Appellant Suresh Is His Grandson, Being Son Of Asha Ram. Siyaram Deceased Was The Son Of Mooley And So He Was The Cousin Of Appellant Asha Ram. P.W.1 Smt. Ram Poti Is The Wife Of Deceased Siyaram And Prem Chand Is Their Son. There Was One Co-villager Pahunchi Lal, Whose Son And Daughter-in-law Were Nathu And Molshri. Mooley, Jauhari And Pahunchi Lal Had A Joint Agricultural Holding, Half Of It Belonged To Pahunchi Lal Whereas Rest Half Were Shared By Mooley And Jauhari. It Transpires That After The Death Of Nathu, Molshri Married Asha Ram. Pahunchi Lal Had Taken Prem Chand In Adoption. Being Collaterals And Having Lust For Property, There Were Immovable Property Litigations Going On Between Appellants And Deceased In The Aforesaid Jumbled Relationship. It Is Alleged That Because Of Pending Court Cases And Harbingered Animosity, On 13.12.1978 At 12midafternoon,Siyaram Was Belaboured By The Appellants With Wooden Cot Slats, When He Was Erecting A Ridge(mend). Many Villagers Intervened In The Assault And Saved Siyaram.
Brijendra Singh, P.W.2, Himself, Scribed A Written Report, Ext. Ka-1, About The Incident, As Was Witnessed By Him, And Then Read It Out To The Injured Siyaram, Who Approved Of It And Affixed His Thumb Impression On It, And Thereafter P.W.2 Carried It Along With Siyaram To PS Barnahal And Lodged It.
Constable Clerk Abhai Raj P.W.4, On The Basis Of Exhibit Ka-1, Registered Non-cognizable Report, Exhibit Ka-2 And Prepared Relevant GD Entry Exhibit Ka-3, Noting Therein Injuries Sustained By The Injured. Preparing Request Letter For Medical Examination, Injured Was Sent For Medical Treatment By P.W.4.
Dr. M.L. Agrawal, P.W.6, Medically Examined The Injured On 14.12.1978 At 1.30 Pm, In Civil Hospital, Shikohabad, Who Was Brought To Him By His Nephew Navin Chand And Had Admitted Him In The Hospital. At That Time Injured Was Conscious But Was Not Speaking. Following Facts Were Noted By The Doctor In The Medical Examination Report Of The Injured Vide Exhibit Ka-9:-
"Exhibit Ka-9
Examined Siya Ram Aged About 40 Yrs. S/0 Mool Chand R/o Solipur, P.S. Barnahal, District Mainpuri Brought By His Nephew Navin Chandra And Found The Following Injuries On His Body. (Time 1.30 P.M. 14.12.78).
M.I. (1) Three Black Moles Near Each Other On 1" Area Of Middle Of Right Collar Bone.
(2) Traumatic Swelling Diffuse On Right Temple And Right And Quadrant Of Head - Right Side.
(3) Contusion With Abrasion 3" X 1" Red With Soft Brown Seal On Abrasion On Right Shoulder Blade.
(4) Bleeding From Right Ear - Clotted Blood Seen.
Opinion :- Both Injuries Have Been Inflicted By Hard Blunt Weapon. Duration About One Day Old.
Inj. No.1 Is Under Observation Head Injury And Bleeding From Ear.
Inj. No.2 Is Simple."

According To Doctor's Testimonies, Condition Of The Injured Was Improving From 14th Till 17th, But All Of A Sudden, In The Evening Of 17th At 4.00 P.m. It Started Deteriorating Because Of Cerebral Irritation. Sensing His Condition To Be Critical And Serious, Next Day (18.12.1978), Doctor P.W.6 Sent A Memo At 1.45 P.m. For Recording Of His Dying Declaration, Which Was Recorded By Tahsildar Magistrate Same Day At 2 P.m. Vide Ext. Ka 17. Doctor, P.W.6, Had Appended A Certificate, Ext. Ka 10, Regarding Fit Condition Of The Injured To Give His Declaration. In The Said D/D Injured Had Stated That He Was Assaulted By The Appellants By Slats On Wednesday In Morning Because Of Dispute With Asha Ram For Opening A Gate Towards His Agricultural Field As He Wanted To Create His Courtyard (Chaupal) There. Bed-head-ticket About Injured Hospitalisation And Treatment Is Exhibit Ka-11.On 19.12.1978, Injured Siyaram Started Losing His Consciousness And Remained In Same Condition On The Next Day, 20.12.78, As Well, But At 4.30p.m. That Day, His Relatives Desired To Carry Him To Firozabad, And Therefore, At Their Request, Injured Was Relieved From The Hospital Same Time And Was Taken To Firozabad By Brijendra Singh, P.W.2 And Was Got Admitted In S.N.M. Hospital, Firozabad But Following Morning, 21.12.78 At 9.47 A.m., He Lost The Battle Of His Life And Expired. Inquest On His Cadaver Was Performed On 21.12.78 By S.I. Ramesh Chandra Yadav, Of PS North, Firozabad, P.W.8, Who Had Prepared Inquest Report And Other Relevant Papers Vide Exhibit Ka-14 To Ka-16 And Subsequent Thereto Had Dispatched It For Autopsy Purposes. Deceased Body Was Received On 2.12.1978 At 11 A.m. And Papers Regarding Autopsy Report Were Received The Same Day At 3.30 P.m. And The Body Was Identified To The Doctor By Constable Amar Singh Of P.S. North Firozabad. Autopsy On Deceased Corpse Was Performed On 21.12.78 By Dr. Rajendra Kumar, Medical Officer S.N.M. Hospital, Firozabad, PW7, At 4.10 P.m., Who Had Prepared The Post-mortem Examination Report Exhibit Ka-12, Perusal Of Which Reveals Following Facts:-
Deceased Was Aged About 40 Years And Half Day Had Elapsed Since His Death. He Had An Average Built Muscular Body. There Was A Fracture Of 2" On Right Side Temporal Bone, Right Side Membranes Were Full Of Blood Clots And In An Area Of 2"x 2", Membranes Were Congested. His Cerebrum Was Congested. Digested Food Was Present In His Stomach And Small Intestine Whereas Large Intestine Contained Feacal Matter. Following Ante-mortem Injuries Were Noted By The Doctor:-
Ante Mortem Injuries
(1) Contusion (Reddish Colour) 6" X 2", On Rt. Upper Arm Outer Aspect, Upper 1/2 Portion.
(2) Bones And Joins : NAD
(3) External Organs Of Generations : NAD
(4) Addl. Remarks : NIL

In The Estimation Of The Doctor Death Was As A Result Of Shock Because Of Fracture Of Skull Bone.
Intimation And Papers Regarding Demise Of The Deceased Was Received To P.W.4, At PS Barnahal, On 10.1.1979 And On That Basis And On The Strength Of Post-mortem Examination Report And Other Relevant Document, That He(PW4) Converted The Crime Under Section 304 IPC, Vide GD Exhibit Ka-4.
M.K.S. Sengar, S.O. Police Station Barnahal, PW 5, Commenced Investigation Into The Crime On 10.1.79 And Came To The Deceased Village Saifpur Where He Penned Down Investigatory Statements Of Deceased Widow Ram Poti (P.W.1), And Of His Brother Brijendra Singh (PW2). Conducting Spot Inspection, I.O. Prepared Site Plan Exhibit Ka-5. On Following Two Days PW5 Recorded Statements Of Inquest Witnesses. Witnesses Nekse, Navin Chand And Rakshpal Were Interrogated By Him On 12.2.79 And Their Statements Were Recorded. Appellant Asha Ram Surrendered In Court On 28.2.79. Concluding Investigation I.O. Charge-sheeted Him On 2.3.79 Vide Exhibit Ka-7. Later On, Accused Suresh Also Surrendered In Court, On 22.3.79, And Against Him Charge-sheet, Exhibit Ka-8, Was Filed On 24.3.79.
Charge-sheeting Of The Accused Resulted In Their Summoning And, After Due Inquiry, Additional Munsif Magistrate, Finding Their Case Triable By Session's Court, Committed To It For Trial On 18.3.80, Where Two Separate Session's Trial No.129/1980, State Vs. Asha Ram And S.T. No.130 Of 1980, State Vs. Suresh Were Registered.
Session's Judge, Mainpuri, Charged Both The Accused With Offence Under Sections 304/34 IPC On 28.10.1980, Which Charge Were Denied By Both Of Them, Who Claimed To Be Tried And Therefore, In An Endeavour To Establish Their Guilt, Their Prosecution Commenced.
During Trial, Prosecution Examined, In All, Nine Witnesses, Out Of Whom, Widow Ram Poti P.W.1, Scribe Of The FIR Brijendra Singh P.W.2 And Nekse P.W.3 Were Fact Witnesses. Formal Witnesses Examined Were Constable Clerk Abhai Raj P.W.4, I.O. M.K.S. Sengar P.W.5, Medical Examination Doctor M.L. Agrawal P.W.6, Autopsy Doctor Rajendra Kumar P.W.7, S.I. Ramesh Chandra Yadav, Who Had Conducted Inquest P.W.8 And Dev Nandan Singh, Tehsildar, Who Had Recorded Dying Declaration P.W.9.
In Their Statements Under Section 313 Cr.P.C. Accused Persons Denied Incriminating Circumstances Appearing Against Them In The Prosecution Evidences And Pleaded Defence Of Their False Implication.
Vide Impugned Judgement Of Conviction And Sentence, Trial Judge Believed The Prosecution Case Solely On The Strength Of The Dying Declaration Ext. Ka-17 Recorded By Tahsildar Magistrate, Dev Nandan Singh P.W.9 And Therefore, Convicted Both The Appellants For The Framed Charge And Sentenced Them, As Mentioned Above In The Opening Paragraph Of This Judgement, And Hence Challenge, In The Instant Appeal, Is To The Aforesaid Conviction And Sentence, By The Father And The Son.
I Have Heard Sri A.B.L. Gaur, Learned Senior Counsel, Sri J.S. Sengar And Sri Dharmendra Singhal, Learned Advocate For The Appellants And Sri Raghraj Mishra Learned AGA For Respondent State And Have Perused The Entire Material On Record Including Trial Court Record And Evidences Of Witnesses.
Castigating And Criticizing Impugned Judgement Of Conviction And Sentence, Appellants Counsel Contends That The Trial Judge Disbelieved Testimonies Of All The Fact Witnesses P.W. 1 To P.W. 3 And It Also Disbelieved Written Report Exhibit Ka-1 As A Piece Of Dying Declaration And Has Convicted The Appellants Solely On The Basis Of Dying Declaration Recorded By Tehsildar, Exhibit Ka-17. Commenting Upon Exhibit Ka-17 It Was Submitted That The Same Is Not A Reliable Piece Of Evidence And, Therefore, Conviction Of The Appellants Is Unsustainable. They Further Contend That Once The Trial Judge Had Disbelieved All The Fact Witnesses, There Was No Occasion For It To Rely Upon An Uncorroborated Document Recorded By Tehsildar After Lapse Of Many Days During Which Deceased Was Always In The Company Of His Relatives Including PW2, And Therefore Chances Of Tutoring And Embellishment Being Cropped Up In His Statement Were Very Plausible And Eminent, Especially When The Written Report Was Already Lodged Implicating The Appellants. Incident Is Of 13.12.78 And The D/D Was Taken Down On 18.12.78 And For Four And Half Days, During Which Deceased Had Remained Conscious Throughout, He Had Not Informed About The Incident To Anybody. At The Earliest Point Of Time Deceased Had Not Informed The Doctor About The Complicity Of The Appellants And Had Kept Mum, As Was Stated By The Doctor PW6 And Hence No Reliance Can Be Placed On Such Belated Statement By The Deceased. FIR Was Lodged On 13.12.78 At 4.30 P.m. And Medical Examination Of The Deceased Was Conducted On The Following Day 14.12.78 At 1.30 P.m. And During This Period Deceased Was With His Family Members Including PW2. Thus At All Times He Could Have Been Tutored. No Offence U/s 304 IPC Is Disclosed Against The Appellants And Therefore, It Was Submitted That The Appeal Of The Appellants Be Allowed And They Be Acquitted Of The Charge Levelled Against Them.
Learned AGA Argued To The Contrary And Submitted That The Dying Declaration Unerringly Establishes Assault By The Two Appellants On The Deceased And, Therefore, By Itself Is Sufficient To Uphold Their Conviction And, Therefore, Instant Appeal Lacks Merit And Be Dismissed.
I Have Pondered Over Rival Arguments Vis A Vis Evidences Available On Record And What Is Culled Out From It Is That There Are Some Very Unsatisfactory And Disquieting Features Of The Prosecution Case, Which Creates A Doubt In The Mind Of The Court Regarding Genuineness Of The Prosecution Allegations. There Are Some Legal Flaws As Well, Which Compels Me To Take A View Contrary To What Has Been Taken By The Trial Judge. Firstly, Out Of Three Fact Witnesses Examined In The Trial, Two, PW1 Ram Poti And PW2 Brijendra Singh Are Related, Interested, Partisan And Enimical. The Only Independent Third Witness Nekse, PW3, Turned Hostile And Did Not Support The Prosecution Case. Although Testimonies Of PW1 &2 Cannot Be Discarded Because Of Their Relationship And Interestedness Only, But Out Of Them, As An Eye Witness, There Is Only Evidence Of PW1. The Other Witness PW2 Had Not Deposed That He Had Seen The Actual Incident. He Disclosed That He Was Informed About The Assault By The Injured, When He Had Reached At The Spot, After The Incident Was Already Over. Thus Evidence Of PW2 On That Score Does Not Establish Prosecution Case. His Narration That Injured Had Disclosed Him Names Of The Two Appellants Albeit Could Be Treated To Be A D/D, Because Sine Qua Non Pre-requisite For Admitting It As Such Are Present, But The Difficulty In Relying Upon Such A Claim By PW2 Is It's Unreliability. Had Such A Fact Been Correct, The Same Would Have Find Place In Ext. Ka 1, Which Is The Written Statement Of PW2 Himself. Contents Of Ext. Ka 1 Indicate That PW2 Had Projected Himself To Be An Eye Witness Of The Incident. Thus, At The Earliest Occasion, This Important Fact Was Not Mentioned By PW2 And Hence His Claim That Injured Had Informed Him About The Appellants Being His Assailants Cannot Be Accepted. Further PW1 Widow Had Deposed That Her Injured Husband Had Become Unconscious Immediately After Sustaining Injuries And Till He Was Carried To Shikohabad Hospital He Continuously Remained Unconscious. Such A Testimony By PW1 Contradicts Claim Of PW2 Regarding Disclosure Made By The Injured To Him, Directly And Substantially And Hence Deposition Of PW2 Cannot Be Relied Upon. Further He Is Enemical As Appellant Asha Ram Had Been A Witness Against Him In A Case U/s 323/379 IPC, Instituted By Nathu Singh, In Which Case He Was Fined.
Turning Towards The Evidence Of P.W. 3 Nekse, He Had Turned Hostile And Did Not Support The Prosecution Case At All. Public Prosecutor Had Cross-examined Him At Great Length And Had Put All The Contradictions And Commissions Occurring In His 161 Cr.P.C. Statement To Which All He Had Denied. Hence, Entire Prosecution Version About Actual Incident Is Based Only On A Single Testimony Of PW1, Coupled With Alleged Two D/D Ext. Ka 1 & 17.
Turning Towards Evidence Of The Widow PW1, An Analytical Appreciation Of Her Depositions Reveal That She Is Not A Wholly Reliable Witness. Her Claim That She Was Present At The Incident Scene Is Paradoxical. Albeit, In Examination- In-chief, She Claimed That She Was Present At The Incident Scene Since Beginning But, When Tested In Cross Examination, She Stated That She Had Rushed There On Hearing Her Husband's Shrieks. Thus She Had Stated Self- Contradictory Versions On Which No Reliance Can Be Placed. During Assault She Had Not Endeavoured At All To Rescue Her Husband Nor After The Assault Tried To Comfort Him. She Remained A Silent Spectator To The Incident And This Creates A Doubt About Her Presence At The Incident Scene At The Relevant Time. This Opinion Is Countenanced By Depositions Of PW2, Who Had Testified That When, After The Incident, He Had Reached At The Spot, Then Only Injured Was Lying In An Injured Condition And None Else From His House Was Present At That Moment And After His Arrival That PW1 Had Reached At The Spot. Thus PW1 Is Contradicted By Her Own Relative. From Her Conduct And, On Such Contradictory Evidences, It Is Difficult To Rely Upon The Testimonies Of PW1 Of Her Being An Eye Witness Of The Incident. She Is Not Truthful Because She Deposed That FIR, Ext. Ka-1, Was Dictated By Her Husband To Brijendra Singh, PW2, Which Fact Is False, As Is Clear From The Said Document As Well As From The Testimony Of PW2 Himself. According To PW2 She Had Not Accompanied Her Husband To The Police Station. As Claimed By The Widow She Brought Her Injured Husband Back To Her House And Kept Him There Without Caring For His Immediate Medical Aid, Although She Claimed That He Was Unconscious. Trial Court Also Disbelieved Her As An Untruthful Witness Vide Para 14 Of The Impugned Judgement And I Find No Reason To Differ From It's Conclusions On This Score. Under Somewhat Similar Conduct And Circumstances, Apex Court Has Also Disbelieved Wife's Testimonies And Had Found Her To Be Unreliable In The Decision Of L/N Mehraj Singh Versus State Of U.P.:1995 Cr.L.J. 457 Wherein It Has Been Observed By The Apex Court As Under:-
"13. It Appears That It Was A Blind Murder And None Of The Eye-witnesses Were Actually Present At The Scene. The Ante Timing Of The FIR Was Obviously Made To Introduce Eye Witnesses To Support The Prosecution Case. We May Demonstrate This By Noticing That Though PW 3 Smt. Kamlesh The Widow Of The Deceased Claimed That She Was Present With Her Husband At The Time Of The Occurrence, Her Conduct Was So Unnatural That Not Only She Did Not Try To Save Her Husband By Trying To Provide A Cover But Even After Her Husband Fell Down And Was Inflicted Repeated Injuries With The Knife By The Appellant Meharaj Singh, She Did Not Even Try To Go Anywhere Near Her Husband And Even Later On Held His Head In Her Lap And Try To Provide Some Comfort To Him. This Becomes Obvious From Absence Of Any Blood Stains On Her Clothes. She Admitted That She Had Not Even Received A Scratch During The Occurrence. In A Situation Like This, The Normal Conduct Of Any Wife Would Be Firstly To Make An Effort To Save Her Husband Even By Taking The Blow On Herself And If That Is Not Possible Then At Least To Go So Close To His Person, At Least After The Assailants Had Left That There Would Be No Escape From The Blood Oozing Out Of His Injuries Of The Deceased To Come On To Her Clothes."
In View Of Above Discussion, There Is Hardly Any Scope For This Court To Take A Contrary View Than What Has Been Taken By The Trial Judge In Discarding The Testimonies Of All Three Fact Witnesses And, Therefore, Trial Judge's Opinion In Not Relying Upon All Of Them, Does Not Suffer From Any Infirmity.
Now Adverting To The Two D/D, It Is Noted That Ext. Ka 1 Is No Statement By The Injured/ Deceased Nor Was Scribed At His Dictation. Thus It Cannot Be Admitted In Evidence As Such. At The Worst, Exhibit Ka-1 Can Be Taken To Be A Written Previous Statement Of Brijendra Singh, PW2. Categorical Statement Of P.W. 2, During Trial, Was That The Said Document Was Scribed By Him On His Own. It Was Not Dictated By The Deceased. After P.W. 2 Had Scribed Exhibit Ka-1 Then He Read It Over To The Deceased Siyaram, Who Certified It To Be Correct And Affixed His Thumb Impression. In Such A View, Exhibit Ka-1 Cannot Be Treated To Be A Dying Declaration Of Siyaram, The Deceased. Dying Declaration Is A Statement Made By A Person Under The Expectation Of His Death And Is Verbal Or Written In His Own Words As Is Ordained In Section 32 Evidence Act. Written Statement By Somebody Else, Who Is Not Under Expectation Of His Death Regarding The Assault Made On A Second Person Is Not A Dying Declaration. Exhibit Ka-1 Unerringly, Without Any Ambiguity, Indicate That It Was A Written Statement By Brijendra Singh P.W.2 Regarding Assault Made On The Deceased Siyaram. It Is Not The Statement Of Siyaram Himself And, In Such A View, Could Not Be Taken To Be His Dying Declaration. For Clarity Of This Conclusion, Section 32 Of The Evidence Act, Is Reproduced Below:-
"32. Cases In Which Statement Of Relevant Fact By Person Who Is Dead Or Cannot Be Found, Etc., Is Relevant-Statements, Written Or Verbal, Of Relevant Facts Made By A Person Who Is Dead, Or Who Cannot Be Found, Or Who Has Become Incapable Of Giving Evidence, Or Whose Attendance Cannot Be Procured Without An Amount Of Delay Or Expense Which, Under The Circumstances Of The Case, Appears To The Court Unreasonable, Are Themselves Relevant Facts In The Following Cases:-
(1)When It Relates To Cause Of Death.-When The Statement Is Made By A Person As To The Cause Of His Death, Or As To Any Of The Circumstances Of The Transaction Which Resulted In His Death, In Cases In Which The Cause Of That Person's Death Comes Into Question........
(2).........................................................................................
Such Statements Are Relevant Whether The Person Who Made Them Was Or Was Not, At The Time When They Were Made, Under Expectation Of Death, And Whatever May Be The Nature Of The Proceeding In Which The Cause Of His Death Comes Into Question."

Aforesaid Section Postulates That 'a Statement Whether Written Or Verbal Made By A Person, Who Is Dead, ..............". Exhibit Ka-1 Is Not A Statement Of The Person, Who Subsequently Died. It Is Only Certified By Such A Person To Be Correct And Hence Cannot Be Treated To Be A Dying Declaration. Exhibit Ka-1, Therefore, Can Only Be A Written Previous Statement Of P.W. 2, Which Could Have Been Utilized Only For The Purposes Of Contradictions As Is Provided Under Section 162 Cr.P.C. Read With Section 145 Of The Evidence Act. Trial Judge Also Did Not Place Any Reliance On It And Hence The Earliest Prosecution Version Is Robbed Of It's Authenticity And Genuineness. This Diminishes Value Of Prosecution Case To An Un-recoupable Extent. On This Aspect Support Can Be Had From Apex Court Decision In Ratan Gond Versus State Of Bihar:AIR 1959 SC 18, Wherein It Has Been Held By The Apex Court As Under:-
"7. This Brings Us To A Consideration Of The Submissions Made On Behalf Of The Appellant. We May Say At The Very Outset That We Agree With Learned Counsel For The Appellant That The Statements Of Aghani, Who Unfortunately Died Within A Few Months Of The Occurrence Before Her Statements Could Be Recorded In A Judicial Proceeding, Were Not Admissible In Evidence Either Under S. 32 Or S. 33 Of The Evidence Act. Section 33 Is Clearly Out Of The Way Because Aghani Made No Statements In A Judicial Proceeding Or Before Any Person Authorised By Law To Take Her Evidence. The Only Relevant Clause Of S. 32 Which May Be Said To Have Any Bearing Is Cl. (1) Which Relates To Statements Made By A Person As To The Cause Of His Death Or As To Any Of The Circumstances Of The Transaction Which Resulted In His Death. In The Case Before Us, The Statements Made By Aghani Do Not Relate To The Cause Of Her Death Or To Any Of The Circumstances Relating To Her Death; On The Contrary, The Statements Relate To The Death Of Her Sister. We Are, Therefore, Of The Opinion That The Statements Do Not Come Within S. 32 (1) Of The Evidence Act And, Indeed, Mr. Dhebar Appearing On Behalf Of The State, Has Conceded That S. 32 (1) Does Not Apply To The Statements Of Aghani."
Consequent To The Aforesaid Discussion, Reliability And Acceptability Of The Prosecution Story Solely Rests Upon Genuineness, Truthfulness And Authenticity Of Ext. Ka 17, Recorded D/D By Tahsildar Magistrate, PW9, Dated 18.12.78. Trial Judge Relied Upon Only This Document To Convict And Sentence The Appellants.
I Have Perused The Said Dying Declaration. Much Can Be Said Against Acceptance Of The Said Dying Declaration As A True And Authentic Piece Of Evidence. Firstly, According To P.W.1, Deceased Had Fainted After Sustaining Injuries, But According To PW2 He Was Not Fainted And Inside Police Station He Had Accompanied Him. Constable Abhai Rai, PW4, Deposed That Copy Of The Lodged Report Was Given To PW2 Because Injured Had Told Him That PW2 Is His Nephew And Hence Copy Of The Report Be Handed Over To Him. GD Entry About Registration Of Crime Does Not Show That Injured Was Unconscious. All These Evidences Indicate That Injured Was Not Unconscious At The Time He Had Gone To The Police Station. Why Then He Did Not Inform The Police At That Time Regarding Involvement Of The Appellants In The Crime.? Prosecution Has Not Led Any Evidence That On Or Before 18.12.1979, Statement Of The Deceased Could Not Have Been Recorded. Medical Examination Report Of The Deceased Does Not Indicate That He Was Unable To Speak. Why Then He Did Not Inform The Doctor About Complicity Of The Appellants? Form The Police Station He Was Brought Back To His House And He Remained There Till Next Day After Noon. This Period Was Sufficient For Him To Be Tutored And Toe The Line Of FIR Version. Prior To Recording Of Ext. Ka 17 Deceased Had Not Uttered Any Word Nor There Is Any Evidence To That Effect Deposed By Any Of The Witnesses. His Only Statement Is The Alleged D/D. Thus Ext. Ka 17 Is Not The Earliest Narration By The Deceased And Chances Of It Being Tutored Cannot Be Ruled Out. During Five Days, Prior To Recording Of The Dying Declaration, Deceased Was Always In The Company Of His Relatives Including P.W.2, Who Had Scribed The FIR On His Own And Was Enimical To The Appellants. Dying Declaration Is An Evidence Like Any Other Piece Of Evidence And Can Be Accepted Or Rejected Like Other Evidence. It Should Be Accepted Only When It Inspire Complete Confidence Bereft Of Any Uncertainty. Ext. Ka 17, Besides Being Belated Statement Does Not Conclusively Establishes That The Same Was Voluntary Without Any Tutoring. Doctor PW 6 Is Unambiguous That PW 2 Used To Visit The Injured Off And On And His Relatives Were Constantly Present Along His Side. Prior To 17th Condition Of The Injured/deceased Had Improved And He Had Started Conversing. At Ext. Ka-17 There Is No Noting That The Thumb Impression Affixed On It Belonged To The Injured/deceased. PW 9 Has Admitted This Fact. When PW9 Had Reached The Hospital, Relatives Of Injured Were Present By The Side Of His Bed. There Is No Time For Finishing Recording Of This Declaration. According To The Doctor P.W.6 He Had Dispatched Memo For Recording Of D/D At 1.45 P.m. And PW9 Was At A Distance Of 1 Km. It Is Difficult To Believe That Within Fifteen Minutes PW9 Will Reach Hospital And Will Start Recording Of D/D. This Witness Does Not Remember Whether He Had Gone To The Hospital On Foot Or By Some Vehicle. Authenticity And Genuineness Of This D/D Has Been Challenged In It's Entirety And Defence Suggestion Is That It Is Not The Declaration Of The Injured Nor It Contains His Thumb Impression. After Recording Of It, No Certificate From The Doctor Was Obtained That During Recording Of It Injured Remained Conscious Throughout. PW6 Had Deposed That In Cerebral Irritation Upper And Lower Limbs And Other Parts Of Body Starts Flinching. It Was Because Of Such A Symptom That He Had Sent For The Magistrate To Record D/D. In Such A View It Was Incumbent Upon PW9 To Get A Certificate Of The Doctor After Finishing Recording Of Statement Of The Injured. PW2 Was Regular Visitor Of Injured And In Such A View Fabrication Of Ext. Ka 17 Cannot Be Ruled Out. If A Dying Declaration Is Suspect And Suffers From Chances Of Being Tutored And Manipulated, No Conviction Can Be Based Solely On It. On This Aspect Reliance Can Be Placed On Some Of The Decisions By The Apex Court, Which Are Referred To Herein Below:-
In Khushal Rao Versus State Of Bombay:AIR 1958 SC 22 It Has Been Held By The Apex Court As Under:-
"16. On A Review Of The Relevant Provisions Of The Evidence Act And Of The Decided Cases In The Different High Courts In India And In This Court, We Have Come To The Conclusion, In Agreement With The Opinion Of The Full Bench Of The Madras High Court, Aforesaid, (1) That It Cannot Be Laid Down As An Absolute Rule Of Law That A Dying Declaration Cannot Form The Sole Basis Of Conviction Unless It Is Corroborated;
(2) That Each Case Must Be Determined On Its Own Facts Keeping In View The Circumstances In Which The Dying Declaration Was Made; (a) That It Cannot Be Laid Down As A General Proposition That A Dying Declaration Is A Weaker Kind Of Evidence That Other Pieces Of Evidence; (4) That A Dying Declaration Stands On The Same Footing As Another Piece Of Evidence And Has To Be Judged In The Light Of Surrounding Circumstances And With Reference To The Principles Governing The Weighing Of Evidence; (5) That A Dying Declaration Which Has Been Recorded By A Competent Magistrate In The Proper Manner, That Is To Say, In The Form Of Questions And Answers, And, As For As Practicable, In The Words Of The Maker Of The Declaration, Stands On A Much Higher Footing Than A Dying Declaration Which Depends Upon Oral Testimony Which May Suffer From All The Infirmities Of Human Memory And Human Character, And (6) That In Order To Test The Reliability Of A Dying Declaration, The Court Has To Keep In View, The Circumstances Like The Opportunity Of The Lying Man For Observation, For Example, Whether There Was Sufficient Light If The Crime Was Committed At Night; Whether The Capacity Of The Man To Remember The Facts Stated, Had Not Been Impaired At The Time He Was Making The Statement, By Circumstances Beyond His Control; That The Statement Has Been Consistent Throughout If He Had Several Opportunities Of Making A Dying Declaration Apart From The Official Record Of It; And That The Statement Had Been Made At The Earliest Opportunity And Was Not The Result Of Tutoring By Interested Parties.
17. Hence, In Order To Pass The Test Of Reliability, A Dying Declaration Has To Be Subjected To A Very Close Scrutiny, Keeping In View The Fact That The Statement Has Been Made In The Absence Of The Accused Who Had No Opportunity Of Testing The Veracity Of The Statement By Cross-examination. But Once, The Court Has Come To The Conclusion That The Dying Declaration Was The Truthful Version As To The Circumstances Of The Death And The Assailants Of The Victim, There Is No Question Of Further Corroboration.
If, On The Other Hand, The Court, After Examining The Dying Declaration In All Its Aspects, And Testing Its Veracity, Has Come To The Conclusion That It Is Not Reliable By Itself, And That It Suffers From An Infirmity, Then Without Corroboration It Cannot Form The Basis Of A Conviction. Thus, The Necessity For Corroboration Arises Not From Any Inherent Weakness Of A Dying Declaration As A Piece Of Evidence, As Held In Some Of The Reported Cases, But From The Fact That The Court, In A Given Case, Has Come To The Conclusion That Particular Dying Declaration Was Not Free From The Infirmities, Referred To Above Or From Such Other Infirmities As May Be Disclosed In Evidence In That Case."
In State Of Assam Versus Mafizuddin Ahmad:AIR 1983 SC 274 It Has Been Held By The Apex Court As Under:-
"12. In The Instant Case, The Occurrence Took Place On The 10th Of April, 1973. The Deceased Was Alive Up To 18th Of April, 1973. She Did Not Disclose Earlier To Anyone She Met In The Hospital That Her Husband Sprinkled Kerosene Oil And Set Her On Fire. She Met So Many People After The Occurrence - She Met The Village People Who Appeared On The Scene Just After The Occurrence And Who Took Her To Hospital. She Did Not Disclose The Story To The Doctor Or The Nurse Attending On Her. There Is No Evidence Of The Doctor On The Record That She Was Not In A Position To Speak Or That She Had Become Unconscious Between 10th Of April And 18th Of April. It Is Only When Her Uncle Met Her On The 18th Of April That She Made An Oral Dying Declaration To Him And Later To The Magistrate Who Recorded Her Statement. This Throws Doubt On The Dying Declaration Made By Jaygun Bibi And This Circumstance Weighed With The High Court In Discarding The Dying Declaration Of The Deceased. The High Court Discarded The Dying Declaration On Yet Another Ground That The Name Of The Husband Of The Deceased Given In The Dying Declaration Was Mohsin Ali Not Mafizuddin Ahmed And, Therefore, The Identity Of The Lady Jaygun Bibi Was Itself Doubtful. Dr. Ramananda Das, Registrar Of The Surgical Unit No. 1 Of The Gauhati Medical College Hospital, P. W. 6, In Whose Presence The Statement Was Recorded, Has Not Stated That The Declarant Was Jaygun Bibi. He Has Simply Stated That The Magistrate Recorded The Statement Of A Patient Of His Unit Who Received Burn Injuries. Further, The Magistrate, Shri A. C. Bhuyan, Who Recorded The Dying Declaration Of The Jaygun Bibi Stated That The Daroga And A Constable Were Present Nearby When The Statement Was Recorded. Coupled With These Is The Absence Of The Thumb Impression Of The Deceased On The Declaration.
13. The Cumulative Effect Of All The Circumstances Which Weighed With The High Court Is That They Cast Doubt About The Truthfulness Of The Dying Declaration. It Is Not Outside The Realm Of Probability That Her Statement May Have Been Inspired By Her Uncle And, Therefore, It Will Not Be Safe To Base The Conviction Of Respondent, On Such A Dying Declaration."
In State Of U.P. Versus Shishupal Singh: AIR 1994 SC 129 It Has Been Held By The Apex Court As Under:-
"9. Coming To The Vital Document Namely The Dying Declaration It Does Not Contain The Signature Of The Deponent Namely The Deceased. The Prosecution Has Not Come Forward With Any Explanation That The Deceased Was Not In A Position To Put His Signature. Added To That Neither The Time Of Recording Of The Statement Nor The Date Is Mentioned In The Dying Declaration.
10. In Our Opinion The Dying Declaration Is Impregnant With A Number Of Suspicious Circumstances Which Create A Doubt In The Mind Of The Court About The Genuineness Of This Document."
In State Of U.P. Versus Raj Bahadur: 1993 CrLJ 86 This Court Has Held As Under:-
"36. PW 5 Is Sri Jai Pal Singh, The Then Sub-Divisional Magistrate Who Recorded The Statement Of The Deceased. In Paragraph 2 Of His Cross-examination, He Has Admitted That He Asked All Those Persons Present To Quit From The Place Where He Recorded The Dying-declaration. It Means That The Declarant Was Surrounded By A Host Of His Well-wishers, Friends And Relations Right Till Before The Arrival Of The Learned Executive Magistrate. Therefore, It Is Quite Likely That These Persons Availed Every Possible Opportunity To Tutor And Brain-wash The Deceased. In These Circumstances, It Has Become Difficult To Hold That The Statement Exhibit Ka-4 Is An Untutored Version Given By The Deceased At The Time The Statement Was Recorded In Anticipation Of His Death. This Is Another Reason Why We Feel Difficulty In Placing Reliance Upon The Dying-declaration."
Further There Are Other Very Unconvincing Factors Of The Prosecution Case. It Is In PW1 Deposition That After Lodging Of The Report She Had Brought Back Her Husband To Her House And Following Day, He Was Taken To The Hospital. If He Was Unconscious Why He Was Not Made Available First Aid Immediately Is A Big Question. The Earliest Medical Aid To The Deceased Was Therefore Denied. If The Deceased Had Sustained Grievous Injuries And Had Fainted After Assault, It Was Natural That He Should Have Been Got Admitted In The Hospital Instead Of Keeping Him Back At Home. Next It Is Noted That, Although Constable PW4 Stated That He Had Given Letter For Medical Examination But The Doctors Testimony Indicate That Injured Was Medically Examined At The Request Made By His Relatives And Not On The Letter By The Police.
There Is Another Reason For Not Relying Upon Ext. Ka-17 And That Is That It Fetches Out A Third Story Altogether. According To The Deceased, He Was Belaboured Because The Accused Persons Wanted To Grab An Open Space, Which Is Not The Case Of The Prosecution At All. There Is Absolutely No Mention Of Any Ridge Being Erected Because Of Which Incident Occurred. Why This Somersault Was Stated By The Deceased Is Not Understandable. Such A Version Contradicts Prosecution Story Sketched In Ext. Ka- 1 And Testified During Trial By The Fact Witnesses. This Does Not Inspire Any Confidence. It Is Not The Rule Of Law That Dying Declaration Must Be Accepted In All Circumstances Howsoever Fanciful And Embellished It May Be. If A Dying Declaration Suffers From Unconvincing Narration, Only Course Open For The Courts Is To Reject It Outright. This View Is Also Taken For The Reason That The Accused Does Not Get An Opportunity To Cross-examine The Maker Of The Dying Declaration And Hence, It Should Be Accepted Only When It Is Free From All Infirmities, Embellishments And Tutoring. Only When D/D Inspires Complete Reliability That It Can Be Acted Upon Singularly To Hold Accused Guilty.
In Accepting D/D, Ext. Ka-17, Trial Court Misdirected Itself And Analysed It In A Pedantic Manner Without Evaluating It From A Pragmatic And Practical Approach. It Completely Ignored The Above Pointed Out Infirmities And Hence It's Opinion Is Fallacious And Cannot Be Countenanced. I, Therefore, Do Not Concur With It's View.
Further No Offence Under Section 304 IPC Is Disclosed By The Evidences On Record. Only A Single Fatal Injury By A Non-conventional Slats Is Not Indicative Of Knowledge To Commit Murder. Force Applied, While Wielding Slats Also Do Not Indicate Such An Intention As Injury No.1 Was Only A Traumatic Swelling. Hence, It Cannot Be Concluded With Certainty That Appellants Had Such An Intention. What Can Be Concluded Is That Appellants Shared Common Intention To Cause Grievous Hurt. Thus Their Conviction For Offence Under Section 304 IPC Is Unsustainable.
Wrapping Up Of The Discussion, Since I Find That The Prosecution Has Not Been Able To Establish The Guilt Of The Appellants, They Deserve Acquittal.
Appeal Is Allowed. Both The Appellants Are Acquitted Of The Charge Levelled Against Them. They Are On Bail, They Need Not Surrender And Their Surety And Bail Bonds Are Hereby Discharged.
A Copy Of This Judgment Be Certified To The Trial Judge For It's Intimation.

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