Brijlal & Anr vs State of Madhya Pradesh

As these appeals have been filed under Section 374 of the Code of Criminal Procedure by the accused persons being aggrieved by the common

conviction judgment dated 28.05.2007 passed by III Additional Sessions Judge (Fast Track), Khandwa in Session Trial No. 18/2006, whereby

the appellants/accused persons have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced them for life

imprisonment with fine of Rs. 200/- each with default stipulations, we propose to deal with the appeals analogously and dispose of the appeals by

this common order.

It is not in dispute that Narsingh (since deceased) was the driver of the mini truck. Appellant-Brijlal was the owner of mini truck bearing

registration No.MP-16-A-3325.

The prosecution story in brief is that in the intervening night of 1st and 2nd October, 2005, Narsingh (since deceased) along with cleaner

appellant-Guddu took the vehicle to Harda. Narsingh stopped at petrol pump near the Railway Station and went to the city for his personal work,

leaving the truck with Guddu. When he returned, he did not find the truck and Guddu was also missing. On enquiry, he came to know that Guddu

took the mini truck to Khirkiya by-pass. Narsingh along with Raju and one other person went to Khandwa naka, where the truck was stationed.

Narsingh started beating Guddu, due to which a quarrel took place. Then Narsingh took the truck to Bhirangi gate from where Guddu ran away.

When Narsingh came to Khirkiya, he met Brijlal who arranged diesel for the truck.

Appellants Brijlal, Guddu, Radheshyam and Basant (brother of Guddu) had beaten Narsingh with tami (a tool used for removing the wheel of

the truck) and sticks due to which he sustained injuries on the head as well as on his body. Later, all the four accused persons put Narsingh on the

mini truck and took him to Dudhiyapur forest where they tied his hands and legs with rope. They poured oil and diesel over Narsingh and set him

ablaze and fled away from the spot. Somehow, Narsingh could able to extinguish the fire and came on the road. He found two persons on the road

and told them about the incident. Later, police came and took injured Narsingh to the hospital.

When Harishchand Jain (PW-1) and Kaluram (PW-2) came to know about the incident. They informed Jagannath Yadav (PW-4) and he

informed the police about the incident. On the basis of the information, Police Outpost Roshni, Police Station Khalwa, District Khandwa registered

crime under Section 307/34 of the Indian Penal Code. Investigation was initiated against the appellants. Narsingh died during investigation. After

due investigation, charge-sheet has been filed before the concerned Court for the offence under Sections 302/34 and 394 of the Indian Penal

Code against the appellants.

After committal of the case, charges under Section 302/34 of IPC has been framed by the learned Trial Court against the appellants. Appellants

abjured their guilt and stated that they are innocent and falsely implicated in this case.

After having considered the entire evidence on record, learned Trial Court held the appellants guilty for committing offence under Section

302/34 of IPC and convicted the appellants Brijlal, Radheshyam, Guddu @ Roop Singh and Basant Kumar and sentenced them to undergo life

imprisonment.

The present appeals have been filed by the appellants separately on the same ground that the learned Trial Court failed to appreciate that there

is no direct evidence in this case. The learned Trial Court wrongly relied upon the dying declaration of the deceased. Which is very weak type of

evidence and it is not corroborated by other evidence. The prosecution failed to establish the complete chain of circumstantial evidence against the

appellants. The appellants are entitled to benefit of doubt. Hence, they prayed to set aside the order of conviction and sentence.

Heard learned counsel for the parties at length and perused the record.

As per the impugned judgment the conviction of the appellants is mainly based on the dying declaration (Ex.P/22) of the deceased, we find that

it was legally recorded by the Tahsildar Usha Singh (PW-14). In which it was certified by the Doctor that at that time Narsingh (since deceased)

was conscious and medically fit to give his dying declaration. In that regard, we do not find any inconsistency in the statement of Usha Singh (PW-

14). Therefore, the dying declaration of the deceased is found reliable. Deceased Narsingh has stated that earlier he was assaulted by the

appellants. Thereafter, they took him to a culvert and poured diesel on him through gadadi (mattress) and blanket then ablaze him at about 4:00

a.m.

The facts of his dying declaration were also corroborated by his relative Dalal (PW-16) who deposed that about Rs.13,000/- of the deceased

was due on the appellants. After the occurrence, Narsingh also narrated whole incident to him against the appellants that falls under the purview of

oral dying declaration. Statement of Dalal (PW-16) is similar as narrated in the dying declaration (Ex.P/22).

This fact is not in dispute that after the incident Narsingh was alive for about one month till 06.11.2005. He was under treatment as deposed

by Dr. Avtar Singh (PW-12). Dr. Avtar Singh (PW-12) examined him on 09.10.2005 at District Hospital, Khandwa. At that time, the deceased

also told him that someone had threatened him to kill. Hence, a letter (Ex.P/19) was sent to the Police Station, Moghat Road, Khandwa. In this

regard statement (Ex.P/18) was immediately recorded by the Dr. Avtar Singh (PW-12). The statement (Ex.P/18) made by him also corroborate

the prosecution story.

Similarly, the testimony of Dr. Shiv Savner (PW-8) is important to establish that he examined Narsingh on 02.10.2005, at around 9:10 pm in

the night. At that time smell of diesel and kerosene was coming from his body. He found burn injuries on the face, both forearms, hands, left side of

his chest about 6""x5"", above left knee on thigh size 1/2"" and on right knee size 2""x11/2"" of the deceased. He further found the following injuries on

deceased Narsingh:-

(i) A lacerated wound over occipital and parietal region size 21/2""x11/2"".

(ii) A lacerated wound over the right temporal and parietal region size 21/4""x11/2"".

(iii) Blood clots on right ear.

Opinion of Dr. Savner (PW-8) was unchallenged. Hence, his MLC report (Ex.P/15) admittedly proved that all the injuries (except the burn

injury) were caused by hard and blunt object. All the above injuries are sufficient to cause death in ordinary course of nature.

Harishchand Jain (PW-1) and Kalu Ram (PW-2) turned hostile. Jagannath Yadav (PW-4) partly corroborate the dying declaration of the

deceased that he came to know that a person is lying on the roadside on which, he informed the police.

Kapil Deo Shukla (PW-13), Head Constable corroborate the testimony of Jagannath. On verbal report of Jagannath, he registered Crime No.

55/2005 under Section 307 of Cr.P.C., as indicated in report (Ex.P/6). Thereafter, spot map (Ex. P/21) was prepared by him which establish that

burn incident occurred in the forest as stated by the deceased himself, in his dying declaration (Ex.P/22).

According to Deepak Thakur (PW-17), FIR (Ex.P/21) was registered at Police Station, Khalwa against the appellant. Dhan Singh (PW-18)

deposed that appellants namely Guddu, Basant and Radheshyam were present there and informed the police that a person was thrown by them in

the forest. Investigating Officer, Anees Khan (PW-21) has stated that on 04.10.2005, appellant Brijlal was arrested. Mini truck bearing

registration No.MP-16-A-3325 was stationed near Harsood Railway Station. Thereafter, aforesaid truck was seized by him vide seizure memo

(Ex.P/17). Other appellants were also arrested by him. They told that the container of fuel (diesel and oil) used by them was hidden near the place

of incident and sticks were thrown in the forest. Their statements (Ex.P/23, P/24 and P/25) have been recorded by Anees Khan (PW-21) and

spot was confirmed by him vide memo Annexure P/8.

The place of the occurrence itself indicate that the fatal injuries have been intentionally caused to the victim to kill him at a lonely place where

the victim is unable to rescue himself or call other people for his help. The appellant was earlier assaulted him due to which he sustained severe

injuries on his head, both hands and both legs. Therefore, victim Narsingh was unable to escape him because he had severe injures on head.

Thereafter, he was ablazed by the appellants. As per FSL report (Ex.P/32), the presence of diesel has been found on the soil (article A), pieces of

rope (article C), ash (article D), oil-can (article E) and clothes of deceased Narsingh including pant and shirt (article I). It appears that diesel which

was used generally as a fuel in the truck, was used by the appellants to ablaze the deceased.

Learned counsel for the appellant has contended that there is no eye witness to support the prosecution story. We are not inclined to accept

this contention because the offence was committed at a lonely place in the forest. There is no possibility to witness the incident by any independent

witness. Even though, some important witnesses turned hostile in the present case. But after considering the entire evidence and in view of the

discussion in the foregoing paragraphs, we are of the view that the dying declaration of the deceased itself is sufficient to prove that the appellants

caused death of the deceased with their common intention. They all were involved in assaulting and killing the deceased, as stated by the deceased

in his dying declaration (Ex.P/22).

In case of Jose Vs. State of Kerala reported in 2013 Cri.L.J. 3232, the Hon''ble Supreme Court has held as under:

In Babu Lal and others v. State of Madhya Pradesh, while dealing with the value of dying declaration in evidence, this Court has observed thus:-

A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is

obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words

of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The

maxim is ""a man will not meet his maker with a lie in his mouth"" (Nemo moriturus praesumitur mentire). Mathew Arnold said, ""truth sits on the lips

of dying man"". The general principle on which the 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 mind induced by the most

powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed

by a positive oath administered in a court of justice.

Similarly, in the case of Ramesh and others vs. State of Haryana 2017 Cri.L.J. 352, the Supreme Court held that dying declaration is a

substantive piece of evidence and may form sole basis of conviction, if found reliable. The Supreme Court has also held that trend of witnesses

turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other

family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. The following

reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:-

(i) Threat/intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.

Therefore, the dying declaration (Ex.P/22) is sufficient to held the appellants guilty. We are of the opinion that learned trial Court has rightly

convicted the appellants for committing murder of deceased Narsingh. There is no merit in the case to interfere in the impugned judgment and

sentence. Hence, the appeals are dismissed.

Appellant-Basant Kumar () is on bail. His bail bond is canceled and he is directed to surrender immediately before the concerned trial Court to

undergo the sentence, failing which the trial Court shall take appropriate action under intimation to the registry.

Copy of this order be sent to the Court below for information and compliance alongwith its record.