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Judgment
(1) Appellant-State has preferred this appeal being
aggrieved by and dissatisfied with the judgment and order of
acquittal dated 21.01.2002 passed by the Additional Sessions
Judge Gadarwara, District Narsinghpur in S.T. No.02/2000,
whereby the respondents have been acquitted of the charges
under Section 302 in alternative 302 read with 34 or 304 in
alternative 304 r.w. 34 of the IPC .
(2) The prosecution case as unfolded before the trial court, in nut
shell, is as under:-
(2.1) On 03.05.1999 Dr. G.C. Dubey (PW-5), the duty doctor
of the District Hospital Narsinghpur, informed in writing
vide letter Ex.P-20 to the SHO Police Station Narsinghpur
that Dhanraj S/O Devbagas, a resident of village Khadai,
has been admitted to the hospital in an injured
condition. Thereupon, Sub-Inspector S.K. Mishra (PW- 14) reached the hospital, where Daulat Singh (PW-1),
the brother of Dhanraj, lodged an oral FIR stating that in
the night between 02.05.1999 and 03.05.1999 Dhanraj
was sleeping in their Khaliyan at their native village
Khadai to guard the wheat crop. At about 02.00 hours of
the night, he reached to the house in an injured
condition. His clothes were drenched with blood and the
blood was trickling out of the injuries which he had
sustained. He noticed the injuries on his neck, jaws and
shoulders. He was not in a position to speak due to an
injury on his neck. He made an attempt to know from
him who had inflicted injuries for what reasons by signs
and gestures. He also gave Dhanraj a pen and a piece
paper to write about the incident but he slipped into a
state of unconsciousness. Thereupon, he and others
brought him to the hospital for medical treatment. He
has also stated that an unknown person inflicted injuries
on Dhanraj with an object with intention to kill him. S.K.
Mishra reduced the oral FIR into writing being Dehati
Nalisi Ex.P-1, and he registered a case against an
unknown person under Section 302 IPC. (2.2) Upon a written requisition of S.K. Mishra, Dr. G.C. Dubey
(PW-5) medico-legally examined Dhanraj and gave MLC
report Ex.P-19. According to the MLC report, the trachea
of Dhanraj was badly cut and he is in a state of semi-
unconsciousness. Since the place of offence village
Khadai falls under the territorial jurisdiction of Police
Station Chichli of Narsinghpur district, he sent Dehati
Nalisi Ex.P-1 and MLC report Ex.P-19 to Police Station
Chichli. Thereupon, on 03.05.1999 Head Constable
Ramdeen (PW-13) registered a case at Crime
No.64/1999 in Police Station Chichli under Section 307
IPC against an unknown person vide Ex.P-39.
(2.3) On 03.05.1999 itself, the treating doctors of the District
Hospital Narsinghpur referred Dhanraj for further
treatment to the hospital attached to the medical college
Jabalpur. However, his attendants took him to the
National Hospital Jabalpur for treatment. On 03.05.1999,
Dr. Rajeev Jain (PW-12) of the said hospital informed in
writing giving details in vide letter Ex.P-30 to the Police
Station Lard Ganj, Jabalpur that Dhanraj was admitted in
the hospital for treatment. His trachea was badly cut,
therefore, he is not in a position to speak and his
condition is very critical. Thereupon, on 03.05.1999,
Head Constable Laxmikant (PW-8) of Police Station Lard
Ganj, Jabalpur, reached the hospital. He found Dhanraj
in a state of unconsciousness. On 18.05.1999, he again
reached the hospital and gave a notice Ex.P-32 to the
hospital authorities enquiring him whether Dhanraj is in
a position of recording his dying declaration (for short
"DD"). Thereupon, one treating doctor of Dhanraj wrote
on Ex.P-32 itself that Dhanraj is not in a position to
speak, but he can give his DD in writing. Later, in the
presence of Daulat Singh (PW-1), Gulzar (PW-2) and Dr.
Vimmi Agarwal (PW-9), Dhanraj gave in writing his DD
Ex.P-2 in which he has mentioned the names of the
respondents who had caused injuries to him with
weapons like Farsa, sword or knife while he was sleeping
in the night of incident. The police of Police Station Lard
Ganj, Jabalpur sent the DD Ex.P-2 to Police Station
Chichli, Narsinghpur by post keeping in the envelop
Ex.D-3.
(2.4) On 18.05.1999, Dhanraj was discharged from the
National Hospital Jabalpur upon his satisfactory recovery
from the injuries. He was taken to his brother
Khemchand''s residence at Kareli town for convalescence.
On 01.07.1999, Dhanraj''s health started deteriorating,
therefore, he was taken to the District Hospital
Narsinghpur, where the treating doctor found him
brought dead. Thereupon, he informed the SHO, Police
Station Narsinghpur vide letter Ex.P-22 regarding his
death. At this, on 01.07.1999 Assistant Sub-Inspector
B.P. Barmiya (PW-6) reached the District Hospital
Narsinghpur and prepared inquest report Ex.P-25 in the
presence of the public witnesses. Later, he gave the
requisition Ex.P-17 for postmortem examination of his
dead body. Thereupon, on 01.07.1999, Dr. Sanjay
(PW-4) conducted the postmortem examination on the
dead body and gave postmortem examination report
Ex.P-18. According to him, Dhanraj died of cardiac-
respiratory arrest on account of the injury he sustained
in his neck near about twelve hours prior to the
postmortem examination.
(2.5) Upon the death of Dhanraj, the Police of Police Station
Chicholi added an offence punishable under Section 302
IPC.
(2.6) Before the death of Dhanraj, Sub-Inspector R.B. Sharma
(PW-11) investigated the case. In the course of which he
prepared site plan Ex.P-35, collected samples of plain
soil and blood smeared soil vide seizure memo Ex.P-36
from the place of offence, seized blood stained Baniyan
of Dhanraj vide seizure memo Ex.P-15, six paper-slips
vide seizure memo Ex.P-37 and recorded case diary
statements of Kishorilal (not examined), Daulat Singh
and Lochan (PW-3). After the death of Dhanraj Sub-
Inspector Dharmesh (PW-10) took up the investigation.
In the presence of Daulat Singh and Gulzar, he
interrogated all the respondents and recorded disclosure
statements of respondents Manju @ Komal, Manja @
Netram and Ramnivas, which are marked as Ex.P-3,
Ex.P-5 and Ex.P-7 respectively and on the basis of their
disclosure statements, he seized from their houses one
Pharsa, one Gandasiya and one sword like knife vide
seizure memos Ex.P-4, Ex.P-6 and Ex.P-8 respectively.
He also arrested the respondents vide arrest memos
Ex.P-12, Ex.P-13, Ex.P14 and P-35 respectively. He sent
a questionnaire Ex.P-21 with the seized weapons to Dr.
G.C. Dubey. Thereupon, he replied all the questions vide
Ex.P-21-A. He also recorded case diary statements of
some of the witnesses. He also sent visceral material of
deceased Dhanraj and other articles collected in the
course of investigation to forensic science laboratory,
Sagar for forensic examinations, which gave the reports,
Ex.P-9, Ex.P-10 and Ex.P-11.
(2.7) Upon the completion of investigation, the Police of Police
Station Chichli charge-sheeted the respondents under
Sections 307 and 302 IPC.
(3) The learned trial Judge framed the charges against the
respondents as stated in para 1 of this judgment. They denied the
charges and prayed for trial. In the examination under Section 313
Cr.P.C., they denied all the incriminating evidence and circumstances
appearing against them in the prosecution evidence and took the
defence, simpliciter, that they were falsely implicated in the case on
suspicion. However, they did not adduce any evidence either oral or
documentary in support of their defence.
(4) The learned trial Judge has held that the prosecution case is
solely based upon the DD Ex.P-2 of deceased Dhanraj, but the same is
totally unreliable giving reasons therefor inter-alia that deceased
Dhanraj immediately after the incident wrote Ex.D-4 in which he has
stated that he was assaulted while in deep sleep. He, therefore, does
not see the assailant(s). Upon these findings, the learned trial Judge
has acquitted the respondents of the charges framed against them.
Hence, this appeal by the Appellant-State.
(5) Learned Panel Lawyer for the Appellant-State submitted that
the learned trial Judge has held DD Ex.P-2 of deceased Dhanraj
unreliable giving unconvincing and flimsy reasons. Hence, the impugned
order of acquittal is liable to be set aside and the respondents deserve
to be punished in appropriate Sections of law.
(6) Per contra, learned counsel for the respondents submitted that
upon the proper analysis of evidence on record the learned trial Judge
has held that no sooner did deceased Dhanraj reach in his house after
the incident, he wrote on a slip of paper Ex.D-4 that he was assaulted
by an unknown person while sleeping. Thus, the learned trial Judge has
rightly held DD Ex.P-2 unreliable. Upon these submissions, he justified
the impugned judgment and order of acquittal and prayed to dismiss the appeal.
(7) In Chandrappa and Others Vs. State of Karnataka (2007) 4 SCC
415, the apex court has culled out the general principles regarding
powers of an appellate court while dealing with an appeal against the
order of acquittal on the basis of its earlier pronouncements, which are
as under:-
(i) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(ii) The code of criminal procedure 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on question of fact and of law.
(iii) An appellate court, however, must bear in mind that in a case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(iv) If, two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
(8) Almost similar legal principles were propounded by the
Supreme Court in the recent decisions in Gangabhavani Vs. Rayapati
Venkat Reddy & Ors. 2013 Cri.L.J. 4618, Jagadevappa and Ors. Vs.
State of Karnataka 2013 Cri.L.J., 2658, Anjanappa Vs. State of
Karnataka 2014 Cri.L.J. 368 and Sadhu Saran Singh Vs. State of Uttar
Pradesh and Others, (2016) 4 SCC 357.
(9) On the basis of the aforestated principles of law, we shall
proceed to decide this appeal.
(10) We find that upon just and proper appreciation of medical
evidence of Dr. G.C. Dubey, who gave MLC report Ex.P-19, Dr. Vimmi
Agarwal, one of the treating doctors at the National Hospital, Jabalpur,
and Dr. Sanjay who conducted the postmortem examination on the
dead body of deceased Dhanraj, the learned trial Judge has held that
deceased Dhanraj died of the injuries which he sustained in the
incident. Moreover, learned counsel for the respondents has not
disputed in his arguments that deceased Dhanraj succumbed to the
injuries which he sustained at the time of the incident.
(11) Daulat Singh (PW-1) has admitted in paras 20, 21, 27 and 30
of his cross-examination that deceased Dhanraj had written on a slip of
paper something before he went into a state of unconsciousness after
the incident in their house. Without reading the slip, he gave it to his
brother Lochan who in turn gave the slip to the police during the
investigation. Upon the perusal of evidence appearing in para 29 of
Investigating Officer Dharmesh (PW-10), it appears that upon the
request of the defence, the trial court has taken up the slip on record
after taking it out of the case diary and the same is marked as Ex.D-4.
He has stated that he had found slip Ex.D-4 in the case diary when he
took over the investigation from Sub-Inspector R.B. Sharma (PW-11).
In view of the aforesaid evidence, we find that the learned trial Judge
has rightly held that slip Ex.D-4 was written by deceased Dhanraj
himself in his house after reaching from the place of incident. Upon a
perusal of Ex.D-4, we find that in it deceased Dhanraj has written
among other things that he was assaulted while sleeping. Therefore, he
could not see the assailant(s). Thus, Ex.D-4 proves that deceased
Dhanraj could not see and identify the assailant(s) at the time of
incident.
(12) Laxmikant (PW-8) has got written DD Ex.P-2 of deceased
Dharnraj on 18.05.1999 at the National Hospital Jabalpur in which he
has first time stated the names of respondents as assailants. Daulat
Singh, Gulzar, Lochan (PW-3) have admitted in their evidence that at
the time of giving DD Ex.P-2 in writing by deceased Dhanraj, they came
to know that the respondents assaulted him. Upon the perusal of the
DD Ex.P-2, we find that it was recorded in the presence of Daulat Singh
and Gulzar, who are the brother and the Sala (brother-in-law) of
deceased Dhanraj respectively. Therefore, we have to analyze the
truthfulness of the DD Ex.P-2 closely vis-a-vis Ex.D-4. In DD, deceased
Dhanraj has not mentioned as to why he had not disclosed the names
of the respondents as assailants in Ex.D-4 to his kith and kin before
giving his DD in writing. As per DD, deceased Dhanraj gave it in writing
in presence of Dr. Vimmi Agarwal (PW-9). She has stated in para 9 that
she had regularly attended on deceased Dhanraj, who would state
about his health to her in writing on a paper-slip or on a slate. Gulzar
has admitted in para 40 that after four to five days of admission of
deceased Dhanraj in the National Hospital, he would show his routine
requirements by striking a spoon against a Thali (plate) to draw the
attention of attendants. As per the evidence of Dr. Rajeev Jain (PW-12),
deceased Dhanraj was admitted to the National Hospital on 03.05.1999
i.e. the following day after the night of the incident. In the
circumstances, DD of deceased Dhanraj ought to have been taken at
the earliest, but it was taken very late. The delay makes a dent in the
truthfulness of DD Ex.P-2 because of strong possibility of manipulating
in and tampering with it.
(13) Dr. Vimmi Agarwal (PW-9) in para 7 has innocently admitted
that while deceased Dhanraj was giving his DD Ex.P-2 in writing, she
was attending on the other patients of the ward. Her aforesaid
admission proves that deceased Dhanraj has not given DD in writing in
her presence, therefore, her evidence liable to be discarded. Gulzar
(PW-2) has admitted in para 19 that deceased Dhanraj took near-about
one hour in giving DD in writing as he frequently felt uneasiness and
high palpitation. His admission shows that deceased Dhanraj was not
mentally fit while giving his DD. Gulzar has also admitted in para 43
that in DD, deceased Dhanraj has written one name of assailant as
"Manfe Delabalo" whereas there is no such person by this name. This
fact also casts doubt on the veracity of the DD.
(14) Daulat Singh, Gulzar and Lochan Singh have not given any
satisfactory reason in their evidence as to why the respondents had
enmity with deceased Dhanraj. Therefore, we doubt that the
respondents would assault deceased Dhanraj without any enmity. In
their cross-examinations, the defence has suggested them that
deceased Dhanraj had illicit relations with his brother Kishorilal''s wife
and his servant Vishram''s wife and they are in fact behind the crime.
However, they have denied the suggestions, which cannot be brushed
aside in view of the fact that the respondents had no perceptible enmity
with deceased Dhanraj.
(15) Laxmikant (PW-8) has admitted in para 13 of his evidence that
deceased Dhanraj in his DD Ex.P-2 has written only first names of
assailants without mentioning their fathers'' names, ages, castes and
native places. He has also admitted that in addition to the respondents,
other persons may have the same first names. Therefore, it is highly
doubtful that the respondents are the real persons who had assaulted
deceased Dhanraj.
(16) From the aforesaid reasoning and discussion, we hold that the
learned trial Judge has rightly held that implicit reliance cannot be
placed on DD Ex.P-2 in view of Ex.D-2.
(17) As per the evidence of I.O. Dharmesh, he seized one Pharsa,
one Gandasiya and one sword like knife from the houses of respondents
Manju @ Komal, Manja @ Natram and Ramnivas respectively on the
basis of their disclosure statements. As per the FSL report Ex.P-9, blood
stains were found on the seized Pharsa and Gandasiya but not on
sword like knife. However, in the report, it was not mentioned the origin
of blood stains because of disintegration of blood and inconclusive test
results. Thus, the seizures of the Pharsa and Gandasiya from the
possession of respondents Manju @ Komal and Manja @ Netram do not
connect them with the crime.
(18) Upon the foregoing close analysis of the evidence, reasoning and discussions, we do not find any material infirmity or defect in the impugned judgment and order of acquittal warranting interference by this court. Hence, we dismiss this appeal being devoid of merits and substance and uphold the impugned judgment. The bail-bonds furnished by the respondents stand cancelled.