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Judgment
Surinder Singh, J.—The appellant has challenged his conviction passed by the learned trial Court for the offence punishable u/s 302 of the Indian Penal Code for allegedly causing death of one Baba Chetan Giri, a Sadhu, by stabbing with a knife Ext. P.11 on his neck, as he was allegedly suspecting having affairs with his wife, hence sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. .10,000/-, with the default clause.
A-Prosecution case.
Precisely, the prosecution story is that on 19.4.2004 PW1 Raghubir Singh and PW2 another Raghubir Singh son of Shri Telu Ram had come to the house of PW4 Rajinder Singh alias Raju at Sataun to attend a village fair nearby. Next morning, around 6.15 a.m., PW1 Raghubir Singh went outside to defecate, but while passing through the gate of the rest-house, he heard some voice from the upper side and noticed Baba Chetan Giri having a bleeding injury on his neck lying naked on the ground, attracting his attention by waving his hand. He got frightened, and ran back to house of PW4 Rajinder Singh and told him about the aforesaid incident. On this PW2 Raghubir Singh, Ranbir and Khatri visited the place, where Baba Chetan Giri was lying injured. On being asked, he told that the appellant, hereinafter to be referred as ''the accused'' resident of Munana, had stabbed him with a knife.
(ii) Thereafter PW2 Raghubir Singh went to inform Baba Avtar Giri and Pradhan Asha Chauhan. In turn, her son Ajay Chauhan informed police telephonically. This report was entered in the daily diary Ext. PW15/A. The police-party headed by HC Sunder Singh reached the spot and found the dead body lying in a blood of pool.
(iii) PW24 Dy. S.P. Bhagat Singh Thakur was informed, he alongwith police-party reached the spot. The statement Ext. PA of PW1 Raghubir Singh was recorded u/s 154 of the Code of Criminal Procedure by PW24 aforesaid and sent for the registration of the case.
(iv) PW22 ASI Balak Ram, prepared the site plan Ext. PW22/C and PW17 Jai Chand took photographs Ext. PW15 to PW42 of the dead body.
(v) Police prepared the inquest papers and sent the dead body for autopsy and also collected the controlled sample of soil stained with the blood which was sealed and taken into possession vide memo Ext. PB in the presence of PW3 Ajay Chauhan and Shamsher Gupta.
(vi) Police also conducted the search of the hutment of the deceased and took into possession his belongings. At a distance of about four feet outside the hut a ''Chappal'' and another ''Chappal'' at a distance of 40 feet and blood stained ''Parna'' at a distance of 20 feet, from the hut were also found and taken into possession alongwith ''Lotta'' lying in the ''Dhank''.
(vii) PW14 Dr. Sanjeev Sehgal conducted the postmortem on the dead body on 20.4.2004 around 3.30 p.m. The dead body was having only ''Langot'' over perennial and the whole body was clotted with blood and dry leaves were found present at some places. The doctor noticed incised wound of size of 2.5 x 1.5 inches spindle shaped on the left side of the neck 3 inches above clavicle over the line below the lobule of left ear. A portion of platysma muscle was found intact, but exposed over anterior aspect of the wound. The wound was 2 inches deep and the depth was more anteriorly behind the back muscle that was 3 inches. The wound was filled with clotted blood. The carotid sheath, carotid vessels and jugular vein were found ruptured. Oesophagus and trachea was cut on left side. The thorax was normal. On the examination of the abdomen, there was slight blood in oesophagus and in stomach. Other muscles bones and joints were found normal. In the opinion of the doctor, the deceased had died due to incised injuries on left side of neck caused by sharp weapon causing injury to major blood vessels of neck resulting in haemorrhage shock and death. Probable time elapsed between injuries and death was approximately 10 to 15 minutes and between death and postmortem was 12 hours. The postmortem report is Ext. PW14/B.
(viii) The accused had escaped, thus different teams were constituted to apprehend and one of such team was headed by PW24 Dy. S.P. Bhagat Singh Thakur himself. Thereafter Dy. S.P. Bhagat Singh Thakur apprehended the accused on 20.4.2004.
(ix) On 21.4.2004, police remand of the accused was obtained. During interrogation the accused made the disclosure statement about the concealment of knife near the ''Kutiya'' of Baba Chetan Giri in bushes at Sataun. This statement was reduced into writing (Ext. PW5/A). Pursuant to this statement, he led the police party to the spot and got recovered the knife Ext. P11 in the presence of witnesses Puran Singh and Bhagwan Singh. Its sketch map Ext. PW6/A was prepared, thereafter sealed and taken into possession vide memo Ext. PW6/B. The site plan Ext. PW22/D of the place of recovery was also prepared.
(x) Thereafter, the accused was taken to his house and produced the clothes which were allegedly worn by him at the time of occurrence. These clothes were sealed in a parcel and taken into possession in the presence of witnesses vide memo Ext. PW7/A and sent for forensic examination.
(xi) On 26.4.2004, parcel of knife alongwith sample of seal was produced before the Medical Officer for seeking his opinion by moving an application Ext. PW14/C. On its examination, the Medical Officer gave his opinion that the injury in question could be caused by the said weapon and thereafter the knife was sealed with seal ''CH'' and its sample Ext. PW22/H was also taken separately and handed over to PW22 ASI Balak Ram.
(xii) On 27.4.2004, the alleged weapon of offence, clothes of the accused and the controlled soil alongwith blood sample, ''Lotta'', ''Parna'' and ''Chappels'' were sent for forensic examination. As per report of the Chemical Examiner, Ext. PX, the knife, controlled sample of soil and ''Parna'' contained the human blood of group ''A'', whereas human blood was also found on ''Lotta'' and ''Chappels'', which was not sufficient for further examination, whereas the wearing apparels of the accused did not contain any blood.
After completing the investigation, Challan was presented against the accused for the offence aforesaid for his trial.
B-Proceedings and findings by the learned trial Court.
Finding a prima facie case, the accused was accordingly charge-sheeted for the murder of Baba Chetan Giri. He pleaded not guilty and claimed trial.
To prove its case, the prosecution examined its witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure. He denied the circumstances which were found attendant upon him and stated that he was innocent and was implicated falsely by Dy. S.P. Bhagat Singh Thakur in this case. The said Dy. S.P. had also involved him earlier in another case of murder about 9/10 years back. The facts of that case were also more or less the same as in present case, but vide judgment Ext. D-1, he was acquitted. When called upon to enter his defence, he did not examine any evidence in defence.
The whole case is based upon dying-declaration made in the presence of the witnesses and the recovery of the knife pursuant to the disclosure statement made u/s 27 of the Indian Evidence Act. In the opinion of the learned trial Court, inter alia both these circumstances were worth inspiring confidence and no dent could be caused in the statements of the witnesses and further that the judgment Ext. D-1 had no bearing with the case in hand, as such convicted and sentence the accused as aforesaid.
C-Contentions in appeal before this Court.
When the matter was being heard, the arguments did not conclude on 12.4.2013, as such appeal was adjourned for 17.4.2013. In the meantime, an application, Cr.M.P. No. 357 of 2013, was moved u/s 391 of the Code of Criminal Procedure seeking permission to lead additional evidence by recalling PW14 Dr. Sanjeev Sehgal and some specialist ENT doctor/consultant on the ground that PW14 Dr. Sanjeev Sehgal, was only MBBS having limited knowledge regarding the physiology of speech. When he had found that when that windpipe (trachea) was cut and there was blood in trachea, the deceased could not have made the dying-declaration or uttered any word.
The application was resisted and contested on the grounds that PW14 Dr. Sanjeev Sehgal had conducted the autopsy of the deceased and categorically opined about the cause of death and time lapsed between sustaining of injury and death, which was not challenged in his cross-examination. Thus, there is no need to recall/summon him or any ENT expert.
The arguments in the case and on the application were heard in detail. Learned Counsel for the accused also submitted the memorandum of arguments alongwith a down-loaded copy of the judgment of the Apex Court, in Roop Ram and another v. State of M.P., (Criminal Appeal No. 803 of 2007), decided on 29.3.2011, whereby the dying-declaration made by the deceased was disbelieved. The points advanced by the learned Counsel for the accused have been that the statements of PWs1, 2 and 3 are contradictory, full of embellishments, improvements, doubts and concoctions and if read together, then the very existence of dying-declaration becomes doubtful. Further PW2 alongwith Baba Avtar Giri had visited the house of Pradhan Asha Chauhan at 7.30 a.m. They did not disclose about the dying-declaration to her or her son PW3 Ajay Chauhan. It is further argued that Ext. PA, the statement of PW1, was recorded by PW24 at 12.00 noon/1.00 p.m., whereas Dy. S.P. had reached the spot at about 8.30 a.m. alongwith other police officials, so there was a delay of about six hours in recording the statement, whereas, the statement of PW2 had already been recorded by Dy. S.P. on his arrival. These statements of PWs 1 and 2 as well as PW24 are contradictory and full of lies. It is also argued that the accused was implicated on the basis of suspicion as the facts of the earlier case in which he was acquitted and the facts of the present case were identical and both were investigated by the same Dy. S.P. Further that Baba Avtar Giri was not examined. The very presence of PW4 Rajinder Singh on the spot is doubtful. The knife was planted. No blood was found on the wearing-apparels of the accused. The statement of PW9 Surinder Singh is unbelievable indicating the presence of accused near the place of incident. It is also argued that in the aforesaid circumstances, it was difficult for the deceased to make the dying-declaration as alleged, therefore, the recalling of PW14 Dr. Sanjeev Sehgal and some ENT expert is also necessary.
On the other hand, Shri P.M. Negi, learned Deputy Advocate General duly assisted by S/Shri J.S. Rana and Ramesh Thakur, learned Assistant Advocates General, vehemently argued that the points raised by the learned Counsel do not cause any dent in the prosecution case and the application for additional evidence deserves dismissal. They brought to our notice the statements of witnesses which were relevant to prove the circumstances aforesaid and further argued that PW2 Raghubir Singh, Baba Avtar Giri had informed Pradhan, Asha Chauhan, but it was her son PW3 Ajay Chauhan, who in turn informed the police telephonically. Therefore, their non-disclosure about the dying-declaration to him would not make any dent in the prosecution story, as they had left the place when the injured was alive and were not aware that he would die before reaching the place and further that the statements of the witnesses of dying-declaration and recovery have no axe to grind. Even in their cross-examination nothing material could be extracted to throw doubt on the prosecution case. It is further argued that not only dying-declaration but the recovery of blood-stained knife fully connects the accused with the alleged offence. The controlled sample of soil and blood near the dead body, ''Parna'' and the knife contained the same blood group which was that of the deceased, as such no fault can be found in the impugned judgment of conviction and sentence. It is further argued that there is also no need to recall PW14 Dr. Sanjeev Sehgal or to examine any ENT expert for the reason that when this dying declaration was made by the deceased to the aforesaid persons, he was fully conscious and clearly named the accused having attacked him. He was conscious and could speak. Further the quantity of the blood in the stomach and trachea because of slight cut, as reflected in the postmortem report was very less not sufficient by which the deceased could not have clearly uttered the words that it was the accused resident of village Munana, who had stabbed him. The facts of Roop Ram''s case supra are quite different and ratio decidendi does not apply in the case, therefore, the application also deserves to be dismissed.
We have carefully and cautiously examined the rival contentions of the learned Counsel for the parties and have reappraised the evidence.
D-Findings and conclusion by this Court in appeal.
First of all we would like to take up the application seeking permission to recall PW14 Dr. Sanjeev Sehgal for his further examination and to examine any ENT expert.
PW14 Dr. Sanjeev Sehgal has already mentioned and deposed in the Court about the position, impact of injury sustained by the deceased and the probable time of death. He stated that the wound was filled with clotted blood. The carotid sheath, the carotid vessels and jugular vein (which are just below skin) were ruptured. Oesophagus and trachea was cut on the left side, but however, the thorax was apparently normal. There was slight blood in oesophagus and in stomach. The deceased was lying and according to witnesses, he was in a pool of blood, thus the gush of blood was outside the body and not inside which could have effected the vocal cords of the deceased.
In fact, physical anatomy is that carotid artery is a principal artery to the neck which supplies the blood located just below the skin. Trachea is a windpipe, it starts from the larynx, which is also known as voice-box. This organ is a part of the upper air passage connecting the pharynx with trachea. The larynx extends vertically to the fourth, fifth and sixth cervical vertebrae. It is composed of three single cartilages and three paired cartilages, all are connected by ligaments and are moved by various muscles. The single cartilages are the thyroid, cricoid and epiglottis. The paired cartilages are the arytenoids, corniculate and cuneiform, which support the vocal folds and called voice box-laryngeal. The epiglottis is a flap or lid at the base of the tongue, closes the larynx as it is lifted up during swallowing and so prevents passage of food or drink into the larynx and trachea. The structure between the pharynx and the trachea contains the vocal cords and slight in trachea would not allow much blood in voice-box.
Now, the contention of the learned Counsel for the accused is that when the blood was filled in the voice-box, it was difficult for the deceased to make the dying-declaration in the above manner as the windpipe was full of blood. But in the instant case after getting the injury, the deceased survived for about 15 minutes, as stated by the doctor. Thus blood would not have filled in the voice box immediately and the contents of blood was found very less in stomach, rather it oozed out because of cut of jugular vein and carotid sheath and vessels. There is evidence on record that the deceased was lying on the ground in a pool of blood. Coincidently PW1 Raghubir Singh had reached the place of said incident immediately and after informing PW2 another Raghubir Singh and others who were staying at a distance of about 40 meters and they reached the spot immediately it was at that time the deceased simply uttered the words that he was stabbed by the accused resident of village Munana and nothing more. It is not the case where he had lost the conscious immediately on getting the injury or that in between he regained his consciousness. Therefore, in our considered opinion, we do not feel that any purpose will be served by recalling PW14 Dr. Sanjeev Sehgal or ENT expert. Thus, the application (Cr.M.P. No. 357 of 2013) is dismissed.
Now coming to the merits of the case. The entire case hinges mainly upon two factors (i) dying-declaration and (ii) recovery of blood stained knife pursuant to the disclosure statement of the accused.
Circumstance No. (i).
In fact, dying-declaration can be oral as well as in writing. The exact words stated by the deceased to the witnesses are of utmost importance. If the exact words are not proved, it might be the case where no reliance could be placed upon the dying-declaration.
It is also not an absolute rule of law that in every case corroboration must be sought for the dying-declaration irrespective of the circumstances of the case, if the Court, after taking into consideration all the factors feels convinced that the statement is true, it could convict the accused although there is no corroboration in the true sense.
Legally, the dying-declaration is admissible u/s 32(1) of the Evidence Act, but it should pass through the reliability test. It is also a settled law that the conviction can be based on dying-declaration without any further corroboration if it was made voluntarily without tutoring or prompting. Normally a man on the verge of death is not likely to implicate innocent person falsely but at the same this statement is not made before the Court on oath and the maker is not subjected to cross-examination, the Court is, therefore, required to scrutinize it carefully and if it is found truthful, it can certainly be acted upon.
In the instant case on this point, the statements of PW1 Raghubir Singh, PW2 another Raghubir Singh son of Shri Telu Ram and PW4 Rajinder Singh are important.
PW1 Raghubir Singh categorically stated that he had come to attend a village-fair and stayed for the night in the house of PW4 Rajinder Singh alongwith PW2 Raghubir Singh alias Raghu, Ranbir and Khattri. When he went to defecate in the morning at about 6/6.15 a.m., he heard some voice while crossing the gate of the rest-house and looked towards that side and noticed that the Baba was lying naked. He became frightened and rushed back to the place of residence, informed PW2 Raghubir Singh alias Raghu, Ranbir and Khattri. All of them rushed to the spot and noticed wound on the left side of the neck of Baba Chetan Giri and on being asked as to what had happened, he told that Bhagwan Singh, resident of Munana had stabbed him with a knife. On this PW2 Raghubir Singh alias Raghu was sent to inform the police telephonically, so everything happened in quick succession and this is what PW2 Raghubir Singh alias Raghu and PW4 Rajinder Singh in whose house PWs1 and 2 were staying, had deposed. All these witnesses were meticulously cross-examined. They categorically stated that they had gone there for attending ''Bishu-fair''. Their presence in village Sataun in the house of PW4 Rajinder Singh alias Raju was not unnatural. Though PW1 had been questioned in some criminal case against the accused earlier, but nothing material was found against him to show that the accused was intentionally involved. Even PW2 Raghubir Singh alias Raghu was subjected to cross-examination. He also stated that when they reached the spot the wound of the deceased was profusely bleeding and the place where he was lying dead it was only 30-40 meters away from the place where they were staying. He also stated that Baba Avtar Giri had been residing at a distance of one kilometer from his room and they contacted the Pradhan, thereafter, police reached the spot.
PW4 Rajinder Singh in cross-examination also stated that there was a ''Bishu-fair'' in Kafota village about 20 kilometers away from his village and Ranbir was from village Bhajon, whereas Parvesh was from village Chowki-Mrigwan. From the said villages Sataun is at a distance of 14-15 kilometers and all of them had assembled at Sataun to attend the ''Bishu-fair'' next day. Therefore, their presence together could not be said to be unnatural.
Thus, we find that prior to the death said Baba Chetan Giri, he had clearly named the accused to be the assailant causing injury which proved fatal to him. Though, the prosecution has failed to prove either by direct or indirect evidence the motive to kill that the deceased was involved with the wife of the accused, but even the motiveless crime is also a crime. Provided the accused stands linked with it, then, there is no scope for entertaining any doubt. Further the motive is not a necessary ingredient of offence of murder, but if it is proved then it serves an additional link and explains, which otherwise remained unexplained.
On 20.4.2004 after the incident around about 8.30 a.m. PW9 Surinder Singh also happened to see the accused in the vicinity, who was coming from Sataun to his village Bhiter Kui, who was identified by him during the trial of the case to be the same person. Though he had seen him only in the Court thereafter, but the recovery of knife affords material corroboration to the case, which will be discussed hereinafter.
Circumstance No. ii.
The second circumstance against the accused is the recovery of knife. As already stated above, the accused was arrested on 20.4.2004. On 21.4.2004 he was remanded to police custody, while in custody, as per PW22 ASI Balak Ram, accused had made disclosure statement about the concealment of the knife near the ''Kutiya'' of Baba Chetan Giri in bushes at Sataun. This statement is Ext. PW5/A and the same is made in the presence of witnesses. PW5 Shyam Lal witness was examined to prove it. He testified that it was the accused, who had made the aforesaid statement which bears the signature of the accused as well as his signatures in cross-examination he denied that it was already written and he only appended his signatures. Nothing material could be extracted in his statement to doubt his version.
After the disclosure statement aforesaid, the police-party was led by the accused to the spot and got recovered the knife from the bushes which was sealed with seal impression "D" after preparing its sketch-map in the presence of PW6 Puran Singh, who was associated as a witness by the police from the petrol-pump. PW6 stated about the fact of recovery and identified his signatures on the aforesaid recovery memo and the knife Ext. P.11 during the trial. In cross-examination, his testimony could also not be shattered. Even during the trial, he produced the seal entrusted to him which was used for sealing on the spot. The recovery of the knife at the instance of the accused is clearly proved and is admissible in evidence.
Further, on 26.4.2004, the said sealed knife was produced before PW14 Dr. Sanjeev Sehgal for his opinion. After getting his opinion, he also sealed the same with ''CH'' seal and thereafter it was sent for its forensic examination. The blood stains found on it tallied with the blood group of controlled blood sample taken from the spot, which pertained to the deceased as indicated in the chemical report Ext. PX. Even ''Parna'' of the deceased was having the same blood group. The above two circumstances, one dying declaration and another recovery u/s 27 of the Indian Evidence Act fully connect the accused with the alleged offence. Therefore, the offence in question is proved to have been committed by the accused and the accused only. No dent could be caused by the defence by relying upon the earlier judgment Ext. D-1 which was also investigated by the same Dy. S.P. about 9/10 years back, but however, in that case the recovery of the knife was disputed and the independent witnesses did not state about the production of the knife by the accused, Jersey of the accused, which was seized, though found having blood stains, but its recovery was also rendered doubtful. The accused had failed to show as to what malice Dy. S.P. has entered against him to fabricate in a false case. But, however, in the instant case as stated above, the accused is fully connected with the alleged crime. Thus, neither non-examination of Baba Avtar Giri nor non-disclosure of dying-declaration by PW3 Ajay Chauhan to the police while informing them telephonically is fatal. Therefore, we do not find any fault in the conviction and sentence passed by the learned trial Court. The appeal is without any merit, hence, dismissed.