Mardan Singh and others vs State of M.P.

Criminal Appeal No.1245/1995 has been filed by the accused persons whereas Criminal Appeal No.1503/1995 has been filed by the State

against the acquittal of some of the accused persons. Both the appeals have been heard together and are being decided by this common judgment.

These appeals have been filed against the judgment dated 05.08.1995 passed by First Additional Sessions Judge, Damoh in Sessions Trial

No.32/1993, whereby the accused persons were convicted under Sections 326/149 and 148 of the IPC and sentenced to undergo R.I. for three

years and R.I. for one year respectively.

Brief facts of the case are that on 06.01.1993 at about 8:00 am, Vishwanath (since deceased) was coming to Hatta. When he reached near

Rausra river bank, all the accused persons came there armed with sticks and farsa and assaulted Vishwanath. Consequent to which he sustained

several injuries on his hands, legs and head. He fell down on the ground. Thereafter, the accused persons thrown a stone on his abdomen. They

had enmity with Vishwanath due to land dispute. Hariram, Giran and Maharani witnessed the incident. Police reached there and brought

Vishwanath to the Police Station. On his report, an FIR was lodged against the accused persons under Sections 147, 148, 149 and 307 of IPC.

His dying declaration and statement under Section 161 of Cr.P.C. have been recorded. He was sent to District Hospital Damoh. Later referred to

Jabalpur Hospital. During treatment he died. After investigation, charge-sheet has been filed before the concerned Court.

After committal of the case, charges under Sections 148, 302/149 of the IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 have been framed against the appellants. The accused persons abjured guilt and pleaded that they are

innocent and falsely implicated in this case by the complainant party due to the land dispute. Appellants were convicted on the basis of dying

declaration of the deceased and testimony of eye witnesses.

Against the aforesaid findings, the accused persons have filed this appeal on the grounds that the prosecution has failed to prove the ingredients

of Sections 148, 149 and 326 of the IPC against the appellants beyond any reasonable doubt. The ocular evidence is not corroborated by the

medical evidence. The statements of the prosecution witnesses are full of omissions and contradictions. The trial Court has not appreciated the

evidence in proper perspective. Therefore, the appellants in Criminal Appeal No.1245/1995 prayed to set aside the impugned judgment and

consequent sentence and acquit the appellants from the charges levelled against them.

Learned Government Advocate for the respondent-State has contended that the appellants have rightly been convicted and sentenced by the

trial Court as per the evidence on record.

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

We reappreciated the evidence on record and find that Vishwanath died on 09.01.1993 at 9:30 p.m. at Jabalpur Hospital, Jabalpur. Dr. A.K.

Jain (PW-14) opined that Vishwanath died due to fat embolism as a result of fracture of long bones. We do not find any reason to disbelieve this

opinion.

Dr. A.K. Jain (PW-14) conducted autopsy of the deceased. Almost similar injuries were reported by Dr. P.D. Kargaiya (PW-7) who was

treating Vishwanath (since deceased). Dr. Jain found following injuries on the body of deceased:-

(i) Compound fracture of both bones of upper part of right leg, external wound on anterior surface of size 1/2 cm x 1/2 cm.

(ii) Fracture of right humerus at upper 1/3 surrounded by huge amount of hematoma.

(iii) Fracture on right first metacarpal bone.

(iv) Repaired wound present over the right leg anterior surface of size 3"" long.

(v) Repaired wound on right side of the chest on the clavicle of size 1/4 "".

(vi) Lacerated wound present on the forehead midline of size 1/2 ""x 1/4 ""x 1/4"".

(vii) Abrasions present over the whole of left upper limb upto wrist joint.

(viii) Abrasion present over the right buttock lateral surface of size 10""x4"".

(ix) Abrasions present on the back of chest across midline of size 10""x2"".

(x) Contusion present over right temporal region of size 4""x4"".

(xi) Contusion present over the anterior surface of right elbow of size 4""x2"".

Dr. Kargiya (PW-7) has also certified the dying declaration Ex.P/16 that injured Vishwanath was capable to give dying declaration, which was

recorded by Naib Tahsildar Satish Awasthy (PW/8). He deposed that dying declaration was recorded at 11:20 am on the date of incident.

All the eye witnesses and Dr. Kargaiya (PW/7) along with Naib Tahsildar Satish Awasthy (PW/8) established that at the time of recording the

dying declaration, Vishwanath was conscious and he was able to speak. In the dying declaration, he has clearly stated that the appellants were

armed with farsa and Lathi. They assaulted Vishwanath and the incident was witnessed by Hariram (PW/4), Giran (PW/10) and Maharani

(PW/5). They have duly supported the prosecution story.

We find that the facts of dying declaration (Ex.P/16) were similar to the FIR (Ex.P/29) lodged by the deceased and recorded by A.K.S. Gour

(PW/15). Similarly, statement of Vishwanath (Ex.P/22) was recorded by D.S. Parihar (PW-13) under Section 161 of Cr.P.C. All these

documents can be treated in the category of dying declaration under Section 32(1) of the Indian Evidence Act.

There is no inconsistency in the aforesaid three dying declarations. Thus, it inspires confidence and it can be the basis of conviction of

appellants.

In case of Ramesh and others vs. State of Haryana (2017) 1 SCC 529, the Supreme Court has held that :-

Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State of N.C.T., Delhi (1999) 8 SCC 161, the Supreme 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 case of Shama vs. State of Haryana (2017) 11 SCC 535, the Supreme Court has held that :-

Dying declaration made by the deceased is admissible in evidence under Section 32(1) of the Evidence Act, 1872. In the absence of any kind of

infirmity or/and suspicious circumstances surrounding its execution, once it is proved in evidence in accordance with law, it can be relied on for

convicting an accused even in the absence of corroborative evidence but with a rule of prudence that it should be so done with extreme care and

caution. (See Panchdeo Singh vs. State of Bihar).

One of the principles which is always kept in mind while examining the dying declaration of the deceased is that ""a man will not meet his Maker

with a lie in his mouth"". As aptly said by Mathew Arnold in a very old English case (see Lyre LCR in R.v. Woodcok) ""Truth sits on the lips of a

dying man"". This principle is deduced from a well-known Latin legal maxim ""nemo moriturus praesumitur mentire"".

[See also Pawan Kumar Vs. State of Himachal Pradesh (2017) 7 SCC 780]

Eye witnesses also corroborate the facts of aforesaid dying declarations. There are no material omissions or contradictions in their testimony.

Vishwanath (since deceased) himself had told to Hari Ram the whole incident.

Prosecution case is duly established by the above evidence. FSL report Ex.P/27 also proves that blood was found on the Farsa, which was

seized by I.O. D.S. Parihar (PW-13). After considering all the above evidence, we find that learned trial Court rightly convicted the appellants

under Sections 148 and 326/149 of the IPC and properly sentenced them.

The learned Government Advocate contended that the deceased sustained fatal injuries, which were sufficient to cause his death in ordinary

course of nature. Therefore, Criminal Appeal No.1503/1995 has been filed by the State for conversion of conviction of the appellants into the

offences punishable under Sections 148 and 302/149 of IPC.

In this regard, we have considered the opinion given by Dr. Jain (PW-14). In his cross-examination, he deposed that generally fat embolism is

caused due to broken bone. There is a possibility of fat embolism when after fracture in bone movement continues. In the instant case, except the

fat embolism, other injuries were not sufficient to cause death of the deceased. In last paragraph, Dr. A.K. Jain (PW-14) has clearly stated that in

the instant case, compound fracture could be treated. That injury itself is not sufficient to cause death of the deceased in ordinary course.

Vishwanath was assaulted on 06.01.1993. As per Dr. P.D. Kargaiya (PW-7), all the injuries were caused by hard and blunt object. Only

injury no.5 on right leg was caused by sharp weapon. Size of the injury was 2 cm x 1/2 cm x 1/4 cm. He did not find any stab wound on the

person of the deceased.

Vishwanath was referred to District Hospital, Damoh but there is no such medical report on record. On the contrary, Vishwanath was treated

in Jabalpur Hospital which is a private hospital. We are in agreement with the observation of learned trial Court mentioned at paragraphs 13 to 17

of the impugned judgment, it is important to mention here that Vishwanath died on 09.01.1993 at Jabalpur Hospital but no document has been

filed by the Police from Jabalpur Hospital with regard to his treatment nor any doctor from Jabalpur Hospital has been examined by the

prosecution. Only medical paper of 06.01.1993 and 09.01.1993 were adduced by the prosecution. Doctor did not find any grievous fracture on

the deceased which could be sufficient to cause his death.

Hence, we do not find any error in the findings of the learned trial Court for not convicting the appellants under Sections 148 and 302/149 of

the IPC. The appellants were rightly convicted under Sections 148 and 326/149 of the IPC and awarded proper sentence.

It is well settled that in the absence of any material irregularity, manifest error or illegality, the High Court should not interfere in the findings of

trial Court. There is no merit in the case to interfere in the impugned judgment. Hence, both the appeals are dismissed.

Appellants in Criminal Appeal No.1245/1995 are on bail. Their bail bonds are cancelled and they are 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.