Amar Singh vs State of Madhya Pradesh

Fakhruddin, J.

f 1. This is an appeal preferred by the appellant accused against the judgment and findings dated 20-9-80, recorded by Shri K.K. Joshi, Sessions Judge, Datia, in Sessions Trial No. 11/80. The appellant has been convicted u/s 302 of the I.P.C. and sentenced to undergo life imprisonment.

The appellant, along with two others (Prabhu and Gopi) was jointly charged and tried for an offence of murder of Surjan, during the intervening night of 21st and 22nd September ''79. It is alleged that Surjan sustained a gun shot injury on his stomach and died next day, on 23-9-79, while on way to Indargarh Hospital.

The prosecution case, in brief, is that during the intervening night of 21st and 22nd September ''79, deceased Surjan, Amarsingh, Prabhu and Gopi planned to commit theft/robbery in the house of Damru (P.W.7), situated in village Kaseru ka pura. It is said that Tussibai w/o Damru got up and she raised alarm. Damru also awakened and saw only one miscreant from the roof. He, then threw Gummas (pieces of bricks) towards him and he contends that one Gumma might have hit the miscreant. On hearing the cry other villagers also got up and came out of their houses and chased the miscreants who were four in number. Seeing the villagers coming towards them one of the miscreants fired, which hit to one of their companions who was way behind from them.

Next day morning, on 23-9-79, Damru (P.W.7) along with Chowkidar of Necmdanda proceeded to the police station Diloripur to lodge a report, but on the way they met with Sub- Inspector, G.R. Ahirwar (P.W.14) to whom they reported the matter, which he recorded as Dehati Nalish (Ex.P/4).

Munnalal (P.W.8), a boy, while coming back from his school, in the way near the field saw a person in injured position, who was demanding water, but due to fear he ran away and narrated the incident toGujrajsingh(P.W.5)andShokat(P.W.6), who along with other villagers went to the place where the alleged injured was lying, and enquired him. He made statement before the villagers and said his name Surjan. He, further, disclosed that he along with Gopi, Prabhu & Amarsingh had gone to Kaserua-ka-pura for committing theft/robbery. At that time Amarsingh was armed with 12 bore gun while others were armed with Farsa & lathi. They all entered the house of Damru, in furtherance of their common object of theft/robbery, but on alarm by the villagers all of them ran away from the spot. His three associates have left him way behind. When the villagers were chasing, Amarsingh fired them which hit Surjan on abdomen. He fell down and his associates were fled away.

P.W. 14, G.R.Ahirwar, after recording Dehati Nalish (Ex.P/4) went to the place where Surjan was lying in injured position. Then, he took his statement (Ex.P/13) u/s 161 of the Cr. P.C. Thereafter, the injured was sent for medical examination and treatment. On the advice of doctor, Naib Tehsildar, B.R. Singh (P.W. 12) took dying declaration of Surjan. Since his condition was serious, he was shifted to Indargarh Hospital, but in the way he died. Dr. B.K. Shrivastava (P.W.9) conducted post mortem and found one small hole on the foreside of abdomen 31/2 lateral to umbhices rounded in shape, size 1/2" x 1/2" blackening round the wound was present. His report Ex.P/7 is on record.

After completion of investigation, a challan for offences under Sections 458 & 302/34 I.P.C. was filed against appellant Amarsingh along with Prabhu and Gopi.

During trial, the appellant-accused abjured the guilt and pleaded false implication. The trial Court examined P.W. 1 Purshottam Singh, P.W.2 Raghuraj Singh, P.W.3 N.R.Kushwaha, P.W.4 Munnalal, P.W.5 Gujraj Singh, P.W.6 Sopat, P.W.7 Damru, P.W.8 Ranchhor, P.W.9 Dr. B.K. Shrivastava, P.W. 10 Bharatsinnh. P.W.I 1 Ram Sahay, P.W. 12 B.R.Singh, P.W. 13 Karansingh and P.W. 14 G.R. Ahirwar. No defence witness has been examined in the case.

The Sessions Judge, after trial, acquitted the co-accused Prabhu and Gopi, but convicted and sentenced the appellant as aforesaid. The trial Court discarded the dying declaration (Ex.P/12), recorded by the Naik Tehsildar, but relying on the statement of deceased Surjan, recorded u/s 161 Cr.P.C. as well as on the oral evidence of P.W.5 Gajraj Singh and P.W.6 Sopat convicted him.

Shri Bhargava, learned counsel for the appellant contended that Ex.P/13 is not admissible in evidence. His contention is that it is a statement of accused recorded by a police officer and is hit by Section 25 of the Evidence Act. Section 25 of the Evidence Act is as under:

" Section 25. Confession to police officer not to be proved - No confession made to a police officer shall be proved as against a person accused of any offence."

Learned counsel for the appellant, further, contends that a perusal of Ex.P/13 itself would show that at the top of the statement it is styled as (sic) i.e., statement of accused.

Shri K.B. Chaturvedi, Government Advocate on the other hand, contended that it is a statement of injured person and, as such, it is admissible u/s 32 of the Evidence Act. Sections 32 & 32 (1) of the Evidence Act are relevant and are quoted below :

"Section 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 fact 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.

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."

Learned counsel for the State, further, contends that the statement 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 and is, therefore, relevant as also admissible in evidence.

In. view of the facts & circumstances of the case and specially so when the document Ex.P/13 is a statement of accused, which has been admittedly made to the police officer, during investigation, and statement made to a police officer is a confessional statement which is hit by Section 25 of the Evidence Act.

Section 25 of the Evidence Act is broadly worded and it absolutely excludes from evidence against the accused a confession made by him to a police officer under any circumstances (while in custody or not). In this case the Investigating officer was investigating the matter on a report lodged by Damru (P.W.7) for an offence Under/Section 458 IPC which relates to lurking house-trespass by night, against Surjan as well. Confession in Section 25 of the Evidence Act does not mean confession only of the crime under investigation. Confession in Section 25 of the Evidence Act is not limited only to confessions of offences with which the accused is charged. Thus, where the accused is charged with murder, a confession to the police of lesser offence (culpable homicide not amounting to murder) is also inadmissible, as has been held in Ali Gohar v. Emperor 1941 Sind 134 : (1941 (42) Cri LJ 805). Likewise, if A says to a police officer "I noticed B murdering X while I was murdering Z" his confession that he murdered Z cannot be proved. (Kodangi v. R. 61 Mad LJ 860 : AIR 1932 Mad 24 :(1932 (33) Cri LJ 173)).

Section 25 of the Evidence Act deals with Accused of any offence. ''Offence'' has been defined in Section 3(38) General Clauses Act, 1897. The phrase ''accused of any offence'' also occurs in Article 20(3) of the Constitution, in M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, it has been held to mean a person against whom a formal accusation relating to the commission of offence has been levelled (e.g. an information to the police) which in the normal course may result in prosecution. The expression ''accused person'' in Section 24 and ''a person accused of an offence'' in Section 25 have the same connotation and describe the person against whom evidence is sought to be led in criminal proceeding. No formal accusation is predicted.

Inacase reported as Dannu Singh and Others Vs. Emperor, a similar situation arose and in that case it was held that the statement of a dying dacoit as to the circumstances ofthe dacoity resulting in his death giving the names of his associates, is not admissible in evidence against the other dacoits u/s 32 of the Evidence Act. In view of the above, we are of the opinion that the statement of an accused being inadmissible will not become admissible merely because he is dead.

The statement Ex.P/13 is a statement of an accused. It has been described as such by the Investigating Officer. He has given the same heading even otherwise this statement is signed by the accused. Section 162 Cr. P.C. stipulates that the statement to a police officer not to be signed. The Investigating officer had obtained the signature of the person making it. The Hon''ble Supreme Court in Mahabir Mandal and Others Vs. State of Bihar, (Mahabir Mandal v. State of Bihar) had an occasion to deal with this and has laid down that the bar of inadmissibility created by Section 162 operates not only on statement of witnesses, but also on statement of the accused made to the police officer.

We have held that Ex.P/13 is inadmissible in levidence. Even otherwise, we are of the opinion that had this statement been admissible, then also it hasl hardly any evidentiary value.

In this case the Investigating Officer is discredited by the trial Court itself. The trial Court did not rely the dying declaration recorded by the Naib Tehsildar, an Executive Magistrate, on the ground that the Investigating Officer himself has recorded the said statement which ought to have been recorded by the Naib Tehsildar. The conduct of P.W.I2 B.R. Singh, Naib Tehsildar and P.W.14 G.R. Ahirwar has been noted.

P.W. 14 G.R. Ahirwar, though initially asserted that it was Naib Tehsildar who had recorded Ex. P/12, but ultimately in paragraph- 18, after seeing the document had to admit that this document Ex.P/ 12 is written by him in his own handwriting.

P.W. 12 B.R. Singh, on the other hand, contended in Para-14 of his statement, that this document Ex.P/12 is recorded by him in his own handwriting and bears his signature. A document like Ex.P/12 cannot be recorded by two persons. It is very sorry state of affairs that both the prosecution witnesses have contended that they are the author of this document. One of them is admittedly speaking a lie. The trial Court has, thus, rightly discarded Ex.P/12 from consideration, but committed grave error in relying upon the testimony of P.W. 14, G.R. Ahirwar in relation to Ex.P/13. From the evidence even otherwise Ex.P/13 is not reliable.

There is one more infirmity. The deceased Surjan had serious wound injury. His condition was very serious. Whether he was mentally and physically fit or capable to give statement, has not been proved by the prosecution and no evidence has been led in that behalf.

Now, remains the oral dying declaration made by the deceased Surjan. So far as this oral dying declaration is concerned, the prosecution failed to prove from the evidence that deceased who had sustained such a serious injury on the stomach and as deposed by P. W. 5 Gajraj Singh and P.W. 6Sopat bleeding from the stomach, whether he (deceased) was physically and mentally fit to make statement has not been proved in the case. There are material contradictions and omissions in the statements of P. W. 5 Gajraj Singh and P. W. 6 Sopat. They have contradicted with their case diary statements on material points. Their conduct is also unnatural. According to them they were near the deceased Surjan for about 6-7 hours till the police reached there and recorded statements. But they did not take care of his treatment. They say that they had sent a Chowkidar to report the matter. There is no report of Chowkidar. The name of Chowkidar. is also not there. The Chowkidar has not been examined as a witness, to stale that P.W.5 Gujraj Singh and P.W.6 Sopat had met with the deeeased or they had told him that the deceased had made oral dying declaration.

These two persons P.W.5 Gujraj Singh and P.W.6 Sopat are resident of village Kaserua while P.W.7 Darru is resident of village Neemdanda. These two persons i.e., P.W5 Gujraj Singh and P.W.6 Sopal did not make any effort to verify from Damru regarding veracity of the oral dying declaration given to them. In view of the facts and circumstances of the case the evidence of these two persons is not such on the basis of which conviction can be based. The evidence is discrepant and does not inspire confidence.

In this case the prosecution story is that the villagers had chased, but none of the villagers has been examined. The incident is said to have taken place during the night and the story in the F.I.R. as well as in the requisition for post mortem and panchayatnama is that one of the dacoits killed. No name, as such, has been given. Had this statement been there then the name of assailant would have found place in the panchayatnama and requisition for post mortem which are prepared by P. W. 14 G.R. Ahirwar.

That in the dying declaration it is alleged that a 12 bore licensed gun was used, but the appellant does not have any 12 bore gun or any licence there for and the gun found in his possession is muzzle loading gun. The gun seized from the accused and the bullets found in the body of deceased were not sent to ballastic expert.

P.W.7 Damru, who has made report Ex.P/4, says that he lodged the report (Dehati Nalish) at 12 o''clock in the noon, whereas the Dehati Nalish is recorded at 18.00 hours. According to Damru (P.W.7) he did not know that any of the miscreants is lying injured in the field of Bhogiram and he came to know about these facts only when he returned home after making report, but in the report (Ex.P/4) the Sub-Inspector has included above facts which were not narrated by the complainant Damru (P.W.7).

In view of the what has been stated above, the prosecution has failed to prove the case against the appellant-accused. He is, thus, entitled for acquittal. He is, accordingly, acquitted. The appeal is allowed and the conviction and sentence recorded by the trial Court are set aside. The appellant-accused is on bail, his bail bond shall stand discharged.