Lotan & Anr. vs State of M.P.

Appellants have filed this appeal against the judgment dated 04.11.1995 passed by Additional Sessions Judge, Gadarwara in Sessions Trial

No.254/94 whereby the trial Court held the appellants guilty for commission of offence punishable under Sections 302/34 and 392/397 of Indian

Penal Code and awarded sentence of life imprisonment and R.I. for seven years respectively.

Prosecution case in brief is that deceased Jijibai was living in a house near the field of Heeralal. She was sleeping in the night. The appellants

entered into the house of the deceased. They looted the property of the deceased. She was sleeping on a cot, her both hands were tied and

appellants ablaze the deceased. On hearing the hue and cry of the deceased, Heeralal came there. Shankar and Narayan also reached on the spot.

They poured water on the deceased to douse the fire. They asked from the deceased that who had committed offence. She told them that Lotan

Kaurav, Raju Kaurav and his servant Gudda came there. They had beaten her and they had also stolen her ornaments and ablaze her.

Heeralal, Narayan and Shankar had taken the deceased to the Police Station on the next date of incident, i.e., 16.08.1994 at about 1.30 pm

where she lodged the report which was recorded by Head Constable, Tikaram (PW-6). She was sent to hospital where she was declared dead

by the Doctor.

After investigation, police filed charge-sheet. During trial the appellants abjured guilt and pleaded innocence.

The trial Court held the appellants guilty for commission of offence punishable under Sections 302/34 and 392/397 of the IPC and awarded

sentence of life imprisonment and seven years R.I., both the sentences shall run concurrently.

Counsel for the appellants has submitted that the conviction of appellants is based on the dying declaration. There is no recovery from the

appellants of looted property. The appellants cannot be convicted on the basis of alleged dying declaration which was recorded by the Head

Constable. The trial Court has committed an error in relying on dying declaration of the deceased.

Contrary to this, counsel for the State has submitted that the dying declaration of the deceased is proper. There is sufficient evidence to convict

the appellants. Trial Court has appreciated the evidence properly.

It is a fact that except dying declaration which is FIR (Ex.P/21) lodged by the deceased herself in the statement recorded by the police of the

deceased (Ex.P/22), there is no evidence to convict the appellants because the prosecution witnesses turned hostile. There is no recovery from the

appellants of looted property.

Narayan (PW-3) turned hostile. Heeralal (PW-4) also turned hostile. Both deposed that they had reached at the house of the deceased after

hearing cry and at that time deceased was unconscious. She did not tell us anything that who had ablaze her. They had taken her to the Police

Station and she lodged the report.

Shankarlal (PW/7) also turned hostile. Parwatibai (PW/8), Shyamabai (PW/9), Fulabai Gond (PW/10), Gangabai (PW/11), Nanha (PW/12),

Summa (PW/13), Makhan (PW/15), Dakkhan (PW/16) and Nanhevir (PW/17) all witnesses turned hostile. They specifically deposed that she

did not tell them that who had ablaze her.

Ex.P.21 is FIR, which was recorded on the information provided by the deceased herself. The FIR is recorded by B.K. Pathak (PW-5). The

time of recording FIR is mentioned 1.30 pm dated 16.08.1994. It is mentioned in the FIR that deceased was living in her house. She was sleeping

at the night. Somebody had inflicted a blow of lathi on the mouth of the deceased and she awoke. She noticed that Lotan Kaurav armed with lathi,

Raju Kaurav with farsa and servant of Raju with ballam were standing. They had taken ornaments and amount of Rs.4000/- of the deceased and

both her hands were tied with the coat on which she was sleeping. Kerosene oil was poured on her and thereafter, she was ablaze. After hearing

the sound nephew Heeralal and other persons came there. Both had poured water on her and tried to douse the fire. They had taken the deceased

to the Police Station to lodge the FIR. Apart from the FIR, there is statement of the deceased (Ex.P/22) which was recorded by the Head

Constable, Tikaram (PW-6) which is dated 16.08.1994.

In the aforesaid statement, there is no signature or thumb impression of the deceased, the time of recording statement has also not been

mentioned. In FIR (Ex.P/21), there is a thumb impression of the deceased. In the statement same facts have been mentioned as mentioned in the

FIR.

Now, question is that whether both these documents could be treated as dying declaration of the deceased and conviction of the appellants

could be based on the basis of the dying declaration.

Tikaram (PW-6) deposed that in August, 1994 I was posted as Head Constable at Police Station, Gotitoriya Distt. Narsinghpur. On

16.8.1994 at around 01:30 pm, Jijibai informed me that between the night of 15 to 16 August, when I was sleeping in my house and door was

closed, I had awaken and saw somebody had beaten me by lathi on my face. I noticed that Lotan Kourav armed with lathi, Raju Kourav armed

with farsa and servant of Lotan armed with ballam were standing. They had taken my ornaments and Rs.4000/-. They had also beaten me. My

both hands were tied with the cot and kerosene oil was sprinkled on me. Thereafter accused persons had ablaze me, when I cried they ran away

from the spot. After hearing my cry my nephew Shankar, Narayan and neighbor Hiralal came there. They had poured water on me and doused the

fire. He further deposed that I recorded the report as narrated by deceased Jijibai which is Ex.P-21. The report was read over to Jijibai. She put

her thumb impression on the report.

Jijibai came alongwith her nephews Narayan and Shankar, thereafter I recorded statements of Narayan and Shankar. I also recorded

statement of Jijibai which is Ex.P-22. He further deposed that I singed Ex.P-22. Deceased Jijibai was speaking very well at the Police Station.

After recording statements within 20-25 minutes, I sent deceased to the hospital. FIR was recorded at about 13.30 hours. The distance between

the Police Station Gotitoriya and Gadarwada is 20 Km. and near about 20 minutes time was taken to reach the hospital. Further, in his cross-

examination he admitted that he did not mention time in the statement Ex.P-22 of Jijibai. He further stated that I recorded the statement of the

deceased as per under Section 161 of the Cr.P.C.

There is no dispute that the statement recorded by the Police Officer of the deceased could be treated as a dying declaration and it can be

relied upon as held by the Apex Court in case of Paras Yadav Vs. State of Bihar (1999) 2 SCC 126.

The law on dying declaration is well settled that if dying declaration is proper conviction can be based on dying declaration without any

corroboration. The Apex Court in the case of Pawan Kumar vs. State of Himachal Pradesh (2017) 7 SCC 780 has held as under with regard to

dying declaration. The Hon''ble Court has relied on earlier judgment of the Apex Court, Atbir vs. Govt. (NCT of Delhi) (2010) 9 SCC 1:-

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot

prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is

coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

In the aforesaid judgment the Apex Court has specifically held that when the eye witness affirm that the deceased was not in a fit and conscious

stage to make the dying declaration medical opinion cannot prevail. In the present case, there is no medical opinion that the deceased was fit to

make the dying declaration.

Tikaram, Head Constable (PW-6) who recorded both the documents (Ex. P-21 and Ex. P-22) deposed that deceased came to the Police

Station alongwith Narayan and Shankar.

Narayan (PW-3) deposed that, I was at the house of the deceased and asked her who had set her on fire. She did not tell anybody. In

paragraph 4 of the cross-examination, he specifically deposed when I reached at the place of deceased and had taken the deceased to

Gadarwada, hospital. She did not speak. Another person is Hiralal (PW-4) who also reached at the residence of the deceased soon before the

incident deposed that deceased did not speak anything.

Shanklal (PW-7) deposed that when I reached at the house of the deceased. She was alive, however, she did not tell me anything. In

paragraph 7 of his cross-examination, he further deposed that deceased was unconscious and she did not tell anything to us because she was not

able to speak. Other witnesses who have been examined by the prosecution Shyambai(PW-9), Gangabai (PW-11), Nanha (PW-12) and Summa

(PW-13) specifically deposed that deceased did not tell them that how she was died.

Narayan (PW-3) and Shankarlal (PW-7) are nephew of the deceased. The prosecution witnesses specifically deposed that deceased was

unconscious and she did not tell anything to them from the initial stage itself. As per the judgment of the Apex Court, if the eye witnesses affirmed

that the deceased was not in a fit and conscious stage then medical opinion would not prevail. In the present case, there is no medical opinion.

Another fact has to be taken into consideration. FIR is said to be recorded at 1.30 pm. There is no time mentioned in the statement (Ex. P/22) said

to be recorded by Tikaram, Head Constable (PW/6). It may be presumed that it was recorded soon after recording the FIR.

Dr. (PW-11) who immediately examined the deceased when she was brought to the hospital at 3.30 pm deposed that when I examined the

deceased she was dead. This evidence confirmed that deceased was brought to the hospital when she was died. Same facts have been mentioned

in Ex.P/1 which is intimation sent to the Police Station by the Dr. It is mentioned in Ex.P/1 that deceased was died. This evidence established the

fact that the deceased was died before 3.30 pm. Prosecution did not fix exact time of the death of the deceased.

In the case of Tarachand Damu sutar vs. State of Maharashtra AIR 1962 SC 130, wherein the Supreme Court has held as under:-

21...... a dying declaration is not to be believed merely because no possible reason can be given for accusing the accused falsely. It can only be

believed if there are no grounds for doubting it at all.

In case of Waikhom Yaima Singh vs. State of Manipur (2011) 13 SCC 125, Hon''ble the Supreme Court has held as under:-

It is also to be seen that the deceased was very seriously injured, so much so that according to the witnesses, he died immediately after

allegedly making the said dying declaration, the time of which is not fixed by the prosecution. The most important circumstance about this dying

declaration is that, firstly, it is oral and secondly, there is no medical evidence suggesting that the deceased was in a fit medical condition to make

such a dying declaration.

There can be no dispute that dying declaration can be the sole basis for conviction, however, such a 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. The oral dying declaration is

a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the

witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some

witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam

Shyamjai Singh (PW-12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and

further fact as to whether he was in a fit condition to make any statement.

If under such circumstances, the trial Court felt it unsafe to rely on the so-called dying declaration, we do not think that the trial Court was not

justified in taking that view. In our view, a perfectly probable view has been taken by the trial Court which could not have been set aside for the

mere fact that some other view could be taken on the basis of the dying declaration. We are at a loss to understand as to how the High Court held

in paragraph 26 of its judgment that the victim was in a fit state of mind to make the declaration. In fact, there is absolutely no evidence about the

fitness of the victim to make the said declaration.

In the aforesaid case the Hon''ble Supreme Court refused to rely on the dying declaration. In the present case, the eye witnesses who had

accompanied the deceased and who are the relatives of the deceased and independent witnesses specifically deposed that deceased was not in a

fit condition and she was unconscious throughout. She died immediately after alleged the statement and FIR recorded. Hence, in our opinion, it

would not be just and proper to rely on the testimony of PW/6 Head Constable that deceased was in a fit condition to give statement and dying

declaration.

Consequently, in our opinion the trial Court has committed an error in convicting the appellants on the basis of Ex.P/21, P/22 and the evidence

of PW/6 treating the aforesaid statements as dying declaration of the deceased. There is no recovery of stolen articles from the appellants. Hence,

the appeal filed by the appellants is hereby allowed. Their conviction and sentence awarded by the trial Court is hereby set aside. The judgment of

the trial Court is also set aside. The appellants are acquitted from the charges. They are on bail their bail bonds stand discharged.

Copy of the judgment along with its record be sent to the trial Court for information and necessary compliance.