Kadori Badai S/o Kannoo Badai & another vs State of Madhya Pradesh

This appeal has been filed by the appellants, being aggrieved by the judgment dated 31.03.2004, passed by Third Additional Sessions Judge,

Damoh in S.T. No.47/2001, whereby the appellant No.1 has been found guilty for the offence under Section 302 of the Indian Penal Code and

has been sentenced to life imprisonment and appellant No.2 has been found guilty for the offence under Section 323/109 of the I.P.C. and

sentenced to fine of Rs.1,000/- with a stipulation for three months simple imprisonment in case of default.

The prosecution case, in brief, is that, on 13.10.2000, at 9 A.M. in the morning, appellant No.1 Kadori Badai with an intention to kill the

deceased, assaulted her with an axe, as a result of which Ashokrani sustained grievous injuries. According to prosecution, when deceased

Ashokrani went to pick up wood from her room, appellant No.1, who is her neighbour came after her and caught hold of her hand and tried to

molest her. When the deceased raised hue and cry, he ran away to his house. Thereafter, when deceased went to the house of appellant No.1 to

confront him, the appellant No.1 on exhortation from his sister, brought an axe, seeing this deceased ran away but the appellant No.1 chased her

and dealt a blow with axe on her neck. After the deceased fell down, he again struck a blow on her left leg. Hearing her cries, Balli Choubey,

Rakku Kotwar and her son Badda reached the spot and intervened, whereafter appellant No.1 ran away. Deceased was taken to Damoh

Hospital by the villagers, where she was examined by Dr. O.P. Dubey (P.W.-17).

After receiving the information to this effect from the Village Kotwar, Rojnamcha Sanha was prepared by S.H.O. R.S. Parmar (P.W.-20),

which was recorded as Ex. P-34(A) at Police Station Hindoriya, who thereafter went to the hospital. Dehati Nalishi (Ex.P-26) was recorded on

the basis of information provided by Ashokrani. The S.H.O. also recorded the case diary statement of Ashokrani. However, later on Ashokrani

succumbed to her injuries.

On the basis of Dehati Nalishi (Ex.P-26) offence under Section 307 of the I.P.C. was registered against the appellants. Section 307 of the

I.P.C. was later on altered to Section 302 of the I.P.C. after Ashokrani succumbed to her injuries.

On the basis of FIR, criminal law was set into motion. Statement of witnesses were recorded. Spot map was made. Soil and clothes were

seized. Disclosure statement of the appellant No.1 led to the discovery of axe. Seized articles were thereafter sent for chemical examination. The

FSL report indicates that human blood was found on the seized articles.

Dr. Shridhar Sharma (P.W.-13), who conducted the autopsy found 10"" x 4"" x 6"" incised wound on left calf region and 14"" x 4"" x 6"" incised

wound on the left supraclavicular region, her neck and back muscles were found cut. According to Dr. Shridhar Sharma, the cause of death was

shock due to excessive bleeding from these incised wounds.

In order to prove its case, prosecution examined as many as 21 witnesses. The accused persons were questioned under Section 313 of the

Cr.P.C. about the incriminating evidence and circumstances, the accused denied all of them and pleaded false implication.

The trial Court relied on the dehati nalishi and case diary statement, which were treated as dying declaration of the deceased. Placing reliance on

the medical evidence and the FSL report( Ex. P-32), the trial Court has recorded a finding that the appellant No.1 was guilty of offence under

Section 302 of the I.P.C. and convicted him with life imprisonment, whereas considering the age of appellant No.2, she was sentenced to a fine of

Rs.1,000/- only with stipulation of three months simple imprisonment in case of default. The appellant No.2 has deposited the fine amount vide

receipt No.19597.

Shri Ayush Choubey, Amicus Curiae appearing for the appellants submits that all the prosecution witnesses have turned hostile and not

supported the case of prosecution. Inviting the attention of this Court to the medical evidence, it is urged that in view of the injury on the

supraclavicular region, the deceased could not have been in a position to give the detailed dehati nalishi and the case diary statement. It is stated

that the trial Court has erred in relying on such statements. It is further urged that the appellant No.1 has inflicted only two injuries and there was no

intention on his part to kill the deceased. According to learned counsel, the incident took place in a sudden altercation and hence the appellant is

entitled to benefit under the exception under Section 300 I.P.C. and his conviction under Section 302 of the I.P.C. cannot be sustained. Shri

Ayush Choubey, learned counsel has placed reliance on State of Madhya Pradesh Vs. Raghuveer Singh and others (2008) 2 MPJR 177 and

Arjun and another Vs. State of Chhattisgarh (2017) 3 SCC 247.

Shri Sudeep Deb, learned Govt. Advocate appearing for the respondent/State, on the other hand has submits that the trial Court has properly

analyzed the evidence in detail and has correctly reached to the conclusion, which does not call for any interference from this Court.

We have heard the learned counsel for the parties at length.

On scrutiny of the record, it is observed that all the witnesses including the seizure witnesses have been declared hostile and deposed contrary

to their case diary statements. However, the reason for turning hostile has been clarified and explained by Badda @ Paramlal (P.W.-15), son of

the deceased in his statement. In para 5 of his cross-examination, he has admitted that appellant No.1 has assaulted his mother with axe and as a

result of the injury, his mother has died but as compromise has been affected between the parties, he has changed his statement so as to save

appellant No.1. Para 5 of the statement of Badda @ Paramlal (P.W.-15) is extracted as under :-

VERNACULAR MATTER OMITTED

In Radha Mohan Singh Vs. State of U.P. (2006) 2 SCC 450, the Supreme Court has held :-

7........It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as

hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can

be accepted to the extent his version is found to be dependable on a careful scrutiny thereof..........

In the present case also the statement given by P.W.15 Badda @ Paramlal in para 5 of his testimony corroborates and supports the case of

prosecution and can be relied upon.

As regards the dying declaration, it is settled law that statement of witness recorded by the police in a routine manner as a complaint can be

considered as dying declaration after his/her death. The admissibility of dying declaration is explained by the Supreme Court in Ramesh Vs. State

of Haryana AIR 2016 SC 5554 as under :-

Law on the admissibility of the dying declarations is well settled. In Jai Karan Vs. State of N.C.T., Delhi (1999) 8 SCC 161, this Court explained

that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. In

order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the

person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and

circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis

of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of

prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of

evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise

true and reliable.

In Umakant and others Vs. State of Chhatisgarh (2014) 7 SCC 405, the Supreme Court has held :-

The philosophy of law which signifies the importance of a dying declaration is based on the maxim nemo moriturus praesumitur mentire, which

means, ""no one at the time of death is presumed to lie and he will not meet his Maker with a lie in his mouth"". Though a dying declaration is not

recorded in the court in the presence of the accused nor is it put to strict proof of cross-examination by the accused, still it is admitted in evidence

against the general rule that hearsay evidence is not admissible in evidence. The dying declaration does not even require any corroboration as long

as it inspires confidence in the mind of the court and that it is free from any form of tutoring. At the same time, dying declaration has to be judged

and appreciated in the light of surrounding circumstances. The whole point in giving lot of credence and importance to the piece of dying

declaration, deviating from the rule of evidence is that such declaration is made by the victim when he/she is on the verge of death.

In spite of all the importance attached and the sanctity given to the piece of dying declaration, Courts have to be very careful while analyzing

the truthfulness, genuineness of the dying declaration and should come to a proper conclusion that the dying declaration is not a product of

prompting or tutoring.

In the present case, P.W.-20 R.S. Parmar, S.H.O. has stated that when he recorded the dehati nalishi, Ashorani was fully conscious and

dehati nalishi (Ex.P-26) was recorded on the basis of information given by her and her thumb impression was taken on the dehati nalishi. He has

further stated that he had also recorded the statement of victim under Section 161 of the Cr.P.C. He had stated that the he was advised to record

the dying declaration of Ashokrani by Dr. O.P. Dubey (P.W.-17), however, Ashokrani succumbed to her injuries before her dying declaration

could be recorded.

The statement of P.W.-20 R.S. Parmar is corroborated by Dr. O.P. Dubey (P.W.-17), who initially examined the victim. Dr. Dubey in his

crossexamination has clarified that the victim was conscious and her BP was 100/70 mmHg. According to the doctor, Ashokrani was in a

conscious and fit state of mind to given her statement/declaration. He has further stated that he had advised the SHO P.W.-20 R.S. Parmar vide

Ex. P-33 to record the dying declaration of the victim.

Both these witnesses P.W.-17 Dr. O.P. Dubey and P.W.-20 R.S. Parmar have not been challenged on this point and remained firm and

consistent in their testimony. The evidence of these witnesses clearly established that the deceased was conscious and given her statement in a fit

state of mind.

In our considered view, there is no reason to disbelieve the dying declaration as recorded in the dehati nalishi and the case diary statement of

the deceased. The dying declaration is also found corroborated by the medical evidence of record as Dr. O.P. Dubey (P.W.-17) and Dr. Shridhar

Sharma (P.W.-13) have found two incised wound on the body of Ashokrani, (i) on the back side of neck upto upper portion of back 7""x 2""x 3

cutting the muscles and (ii) on the left calf 14""x 4""x 6"" cutting the muscles.

The next point falling for consideration is whether the conviction of the appellant No.1 under Section 302 of the I.P.C. is sustainable. As

established from the evidence and as discussed earlier, appellant No.1 caught hold of the hand of deceased and tried to molest her, when she was

picking wood and when she she shouted, he went away. Deceased when confronted the appellants with this fact, there was exchange of words

between them and appellant No.1 came out with his axe. Seeing the axe, the deceased tried to flee the scene, but appellant No.1 chased her down

and attacked her. He struck a blow on the back side of neck with axe, as a result of which, she fell down. He did not stop at this but dealt a

second blow on her left leg with such impact that her calf muscles were cut. It is thus clear that appellant No.1 had intention for causing the bodily

injuries. The act of the appellant No.1 clearly established that it was not a sudden or provoked act, as the deceased was not armed and tried to

run to save herself, rather it was done with intention and knowledge to cause death of the deceased. Hence, the case laws relied by the learned

counsel for the appellants are not applicable to the facts of the present case.

In view of the aforesaid facts and circumstances of the case, the dying declaration of the deceased inspires confidence. The trial Court on

proper appreciation and analysis of the facts and evidence on record had rightly held the appellant No.1 guilty of offence under Section 302 of the

I.P.C. We are of the considered opinion that the trial Court has not committed any illegality in recording the finding of conviction. Therefore, we

affirm the same and dismiss the appeal accordingly.

It is informed that the appellant No.1 is on bail. His bail bonds shall stand cancelled and he is directed to be taken into custody forthwith to

undergo the remaining part of jail sentence.