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Judgment
Sanjay K. Agrawal, J
This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant against the impugned judgment dated 28.02.2012 passed by the Additional Sessions Judge, Jashpur at Kunkuri, District Jashpur, in Sessions Trial No.57/2010 whereby appellant has been convicted for offence punishable under Sections 459 and 302 of the IPC and sentenced to undergo R.I. for 10 years and pay fine of Rs.200, in default of payment of fine additional S.I. for 3 years and imprisonment for life and fine of Rs.300, in default of payment of fine additional R.I. for 3 years, respectively.
Case of the prosecution, in short, is that on 30.03.2010 at about 12:00 pm at night, the appellant trespassed the house of the deceased – Ranjan and assaulted him by stone and caused his murder and thereby committed the aforesaid offences.
Further case of the prosecution is that Saimon Ram (PW-1) uncle of the deceased-Ranjan lodged a report on 31.03.2010 in Police Station Farsabahar that on 30.03.2010 at about 12:00 pm at night unidentified person has murdered his nephew-Ranjan (brother’s son) pursuant to which Assistant Sub Inspector, Ramesh Rai (PW-14) registered, Merg Intimation (Ex.P/1), FIR (Ex.P/2) and inquest was conducted and dead body was sent for postmortem to the Community Health Center, Farsabahar, where Dr. Ajit Kumar Minj (PW-15) conducted postmortem and prepared the postmortem report (Ex.P/15). According to the postmortem report, the cause of death was shock and mode of death was brain hemorrhage due to head injury and it was homicidal in nature. Thereafter, spot map was prepared vide Ex.P/12, and Nazari Naksha was also prepared vide Ex.P/7. Blood stained soil and simple soil were seized vide Ex.P/3 and from the possession of the appellant full shirt and full pant were seized vide Ex.P/4 and stone was also seized vide Ex.P/6 (property seizure memo) as per the memorandum statement of the appellant vide Ex.P/5. Query report was also invited from Dr. Ajit Kumar Minj (PW-15). According to him injury could have been caused by the stone seized as indicated by the appellant herein and weapon of offence was sent for FSL and as per the FSL report (not exhibited) dated 30.06.2010 on full pant, full shirt and on stone blood was found. After due investigation the appellant was charge-sheeted for the aforesaid offences and it was committed to the Court of Sessions for trail in accordance with law in which appellant abjured his guilt and entered into defence stating that he has not committed the offence.
In order to bring home the offence, prosecution examined as many as 15 witnesses and brought on record 16 documents and defence in support of his case examined none and exhibited one document i.e. Ex.D/1.
The trial Court, after appreciating oral and documentary evidence on record, convicted the appellant herein for the aforesaid offence, against which this appeal has been preferred calling in question the impugned judgment of conviction and order of sentence.
Ms. Nirupama Bajpai, learned counsel for the appellant, would submit that appellant has been convicted on the basis of oral dying declaration of deceased-Ranjan to Filmon (PW-2), father of the deceased, and Balam Bai (PW-9), mother of the deceased. Furthermore, the motive has been found proved and further on the clothes of the appellant and on the stone, blood has been found in FSL report (not exhibited) dated 30.06.2010 but no human blood has been found. She would further submit that oral dying declaration is not reliable and motive is a weak piece of evidence and as such, the impugned judgment deserves to be set aside.
Per contra, Mr. Afroz Khan, learned State counsel, would support the impugned judgment and submit that trial Court has rightly convicted the appellant finding the offences under Sections 459 & 302 of the IPC proved beyond reasonable doubt, as such, the present appeal deserves to be dismissed.
We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.
The first question, as to death of deceased-Ranjan was homicidal in nature has been answered by the trial Court in affirmative relying upon the statement of Dr. Ajit Kumar Minj (PW-15) who has proved the postmortem report (Ex.P/15) which in our considered opinion is a correct finding of fact based on evidence available on the record, it is neither perverse nor contrary to the records and we hereby affirm the finding that the death of deceased-Ranjan was homicidal in nature.
Now, the next question would be whether the trial Court is justified in convicting the appellant for offence under Sections 302 and 459 of the IPC ?
11.The trial Court has mainly relied upon the motive of the appellant to commit the offence and the oral dying declaration allegedly given by the deceased to his father Filmon (PW-2) and mother Balam Bai (PW-9) and thirdly, the circumstance that the blood was found on the clothes (full pant and full shirt) of the appellant and on stone which is the weapon of the offence. We will consider all the three incriminating circumstances one by one:-
Oral dying declaration
It is well-settled law that oral dying declaration is a weak kind of evidence. In the matter of Darshana Devi v. State of Punjab 1995 Supp (4) SCC 126, with regard to oral dying declaration, their Lordships of the Supreme Court have held that an oral dying declaration can form basis of evidence in a given case, but such a dying declaration has to be trustworthy and free from every blemish and inspire confidence.
Similarly, in the matter of Arun Bhanudas Pawar v. State of Maharashtra (2008) 11 SCC 232, it has been held by their Lordships of the Supreme Court that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.
Furthermore, the Supreme Court, in the matter of Walkhom Yaima Singh v. State of Manipur (2011) 13 SCC 125, has held that there can be no dispute that the dying declaration can be the sole basis for conviction, however, such dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. It has also been held that oral dying declaration is a weak kind of evidence.
The principle emerging out from the aforesaid decisions rendered by their Lordships of the Supreme Court is that oral dying declaration is a weak kind of evidence and it can only be made the basis of conviction, if it inspires full confidence of the Court and if the Court is satisfied that the maker of the said oral dying declaration was in a fit state of mind at the time of making it and that it was not an outcome of tutoring, prompting or imagination and where the dying declaration is suspicious and there is no other corroborative piece of evidence on record, it would be unsafe for the Court to record conviction on the solitary evidence of such oral dying declaration.
Reverting to the facts of the present case, in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the above stated judgments (supra) with regard to the evidentiary value of oral dying declaration as the basis for conviction, it is quite vivid that in the instant case, the deceased is said to have given oral dying declaration to his father-Filmon (PW-2). Filmon (PW-2) in his statement before the Court has stated that on the date of incident deceased-son, aged about 16 years, was preparing for the exams and he was studying in the separate room and in late night, he heard the cry of his son “Aahh.. Aahh…” , then he visited the room of the deceased where he saw that blood was oozing out near eyes and ears of the deceased and on being inquired from his son, who has assaulted him, then his son-deceased named appellant (Janmajay) and then his wife also came on the spot and then he was taken to the hospital but he died. He also stated that 15 days prior to the date of offence the appellant had assaulted his son by wooden log. Similar statement has been made by Balam Bai (PW-9), mother of the deceased, but in her police statement under Section 161 of the CrPC (Ex.D/1), she has omitted to state that any such dying declaration was made by the deceased to her. Thus, only the oral dying declaration which the deceased has allegedly made to Filmon (PW-2) is admissible under Section 32(1) of the Indian Evidence Act, 1872. It is appropriate to notice hear that Filmon (PW-2) in his statement before the Court has only stated that his son named appellant herein as “Janmajay”. Complete name, father’s name and complete address of the person charged with the offence – appellant has not been stated in the dying declaration.
The Supreme Court in the matter of Gopal Singh another v. The State of Madhya Pradesh and another AIR 1972 SC 1557 has clearly held with reference to Section 32 of the Indian Evidence Act, 1872 that a dying declaration which does not contain complete names and addresses of the persons charged with the offence, even though may help to establish their identity, is not of such a nature on which conviction can be based and it cannot be accepted without corroboration and observed in Para-08 as under:
“8. But even if we resume that the High Court was right in concluding that the dying declaration established the identity of the appellants, it was certainly not of that character as would warrant its acceptance without corroboration. It is settled law that a court is entitled to convict on the sole basis of a dying declaration if it is such that in the circumstances of the case it can be regarded as truthful On the other hand if on account of an infirmity, it cannot be held to be entirely reliable, corroboration would be required. See: Kushal Rao v. The State of Bombay AIR 1958 SC 22. In this case, it must be first remembered that though the names of the appellants' fathers were known to Mod-Singh and others who accompanied him to the Police Station, their fathers' names and present residence have not been mentioned. It is rather unusual for Police Officers not to enquire and record in the first information the full name and address of the persons complained against……..”
The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 has clearly held that Section 32 of the Indian Evidence Act, 1872 is an exception to the rule of hearsay and makes admissible, the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death or deals with circumstances leading to the death.
Following the principle of law laid down in the matters of Gopal Singh (supra) and Sharad Birdhichand Sarda (supra), it is quite vivid that the deceased only said to have named appellant herein as “Janmajay”, no father’s name and no address have been stated in his oral dying declaration given to Filmon (PW-2). Even though the dying declaration is said to have established the identity of the assailant as appellant herein but it is not of the character it would be acted upon to base conviction only on the oral dying declaration of the deceased particularly Balam Bai (PW-9) to whom also dying declaration was given, in her statement under Section 161 of the CrPC has not made any such statement that oral dying declaration was given to her also. Particularly, the fact of the oral dying declaration has not been stated in the Merg Intimation (Ex.P/1) and in the FIR (Ex.P/2) that the deceased had made any such declaration to Filmon (PW-2) and Balam Bai (PW-9). In that view of the matter, it would be unsafe to rely upon the oral dying declaration of deceased-Ranjan to Filmon (PW-2) to base conviction that too for offence under Section 302 of the IPC.
The next piece of evidence is that on full shirt, full pant and on the stone blood has been found in the FSL report (not exhibited) dated 30.06.2010. The Supreme Court in the matter of Balwan Singh vs. State of Chhattisgarh and Another (2019) 7 SCC 781, has held that if the recovery of the bloodstained articles is proved beyond reasonable doubt by the prosecution, and if investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles of human origin though, even though the blood group is not proved because of the disintegration of the blood and held as under in para 24:-
“24.In the instant case, then, we could have placed some reliance on the recovery, had the prosecution at least proved that the blood was of human origin. As observed supra, while discussing the evidence of Pws 9 and 16, the prosecution has tried to concoct the case from stage to stage. Hence, in the absence of positive material indicating that the stained blood was of human origin and of the same blood group as that of the accused, it would be difficult for the Court to rely upon the aspect of recovery of the weapons and tabbal, as such recovery does not help the case of the prosecution.”
In view of the aforesaid legal position, merely because the shirt and pant of the appellant was found to be stained with blood and stone, weapon of the offence, is also found to be stained with blood, recovery of the aforesaid clothes and stone would not help the prosecution case and recovery is of no use.
Finally, the motive has been found proved by the trial Court stating that prior to 15 days from the dated of incident the appellant had assaulted the deceased by wooden log, as stated by Roji (PW-7), Pushpa Bai (PW-8) and Manju Tete (PW-10), in their presence the appellant said to have assaulted the deceased and also threatened to kill him and on account of that enmity, appellant has assaulted and killed him. It is well settled law that the previous enmity is a ground for false implication as well as for correct implication and even otherwise the motive is a weak piece of evidence and merely on establishing the motive for offence, an accused cannot be convicted that too for the offence under Section 302 of the IPC.
In view of the aforesaid analysis, the trial Court is absolutely unjustified in convicting the appellant for offence under Sections 302 and 459 of the IPC. We hereby set aside the impugned judgment dated 28.02.2012 passed by the Additional Sessions Judge Jashpur, at Kunkuri, District Jashpur in Sessions Trial No.57/2010 whereby appellant has been convicted for offences punishable under Sections 302 and 459 of the IPC and sentenced as aforesaid. The appellant is in jail. We direct that the appellant be released from jail forthwith, if not required in any other case.
The appeal is allowed to the extent indicated herein-above.