Suresh vs State Of Madhya Pradesh & Ors

The instant criminal appeal filed u/S 374(2) of IPC assails the judgment of conviction dated 26.09.2000 passed in S.T. No. 250/1988, holding the

appellant guilty for murder of deceased Prithvi Raj in an incident which occurred on 14.05.1988 at 4:10 p.m, convicting him u/S 302 of IPC and

sentencing him to suffer life imprisonment with a fine of Rs. 10,000/- and further convicting the appellant u/S 27 of Arms Act and sentencing him to

suffer three years R.I. with a fine of Rs. 2,000/- with default stipulation while acquitting the other two accused namely Parmal and Thakuri.

Learned counsel for the rival parties are heard finally.

The skeletal facts in nutshell are that on 14.05.1988, at about 4:10 p.m., the deceased Prithiviraj was sitting outside the shop of the watchmaker

PW-1 Pappu alias Kamruddin when the three accused including the appellant came on scooter. The appellant alighted from the scooter and shot the

deceased with his firearm. The deceased sustained firearm injury in his jaw and fell down on the spot. The appellant Suresh thereafter fled away from

the scene on the scooter with the other two acquitted accused. Incidentally, the SubInspector Jitendra Singh Bhadoriya PW-12 who arrived

immediately after occurrence of the incident recorded Dehati Nalishi Ex. P-21 as per the version of the incident disclosed by the injured deceased.

The said Sub-Inspector took the deceased to the hospital and simultaneously registered the offence at the concerned Police Station. In the hospital,

Dr. Shahid Hussain PW-2 recorded the dying declaration Ex. P15. Close on heels, the 3rd statement of the deceased was recorded by the Executive

Magistrate, Jamner Distt. Morena Shri R.K. Waghri PW-4 Vide Exhibit P-15-B. The necessary formalities in the process of investigation wereÂ

concluded. Necessary arrest, recovery and seizure alongwith sending the seized items for forensic examination were made. The chargsheet was filed

and the case was committed to the Court of Sessions where the appellant alongwith the other two acquitted accused abjured guilt and alleged

ignorance about the crime and false implication due to past animosity between the rival parties.

The prosecution proposed 12 prosecution witnesses, out of whom PW-1 Pappu, PW-3 Shivraj Singh and PW-11 Gopal Singh were projected as

eye-witnesses.

The defence produced only one witness DW-1 Suresh, the appellant himself.

After marshalling the evidence and analyzing the material on record, the trial Court convicted the appellant for the offence of murder of deceased

Prithviraj, while acquitted the other co-accused by giving them the benefit of doubt.

Admittedly, the three eye-witnesses projected by the prosecution PW-1, PW-3 and PW-11 did not support the story of prosecution. PW-1 Pappu in

his examination-in-chief accepted happening of the incident , but denied that the assailants who inflicted gun shot injury to the deceased Prithviraj

where the appellant which is evident from the para 4 of the deposition of PW1. As regards PW-3 Shivraj Singh, the said witness totally denied having

seen the incident, while the 3rd eye witness PW-11 Gopal also denied the incident.

7.1 In the absence of any eye-witness to support the story of prosecution, the entire case of the prosecution hinges upon the three statements of

deceased i.e.

Dehati Nalishi Ex. P-21 recorded by the Police personnel Sub- Inspector Jitendra Singh Bhadoriya PW-12; 2nd Dying declaration Ex P-28 recorded

by Dr. Shahid Hussain and the 3rd dying declaration Ex. P-15 recorded by the Executive Magistrate PW R.K. Waghri.

Before adverting to the above said analysis of dying declaration, it would be apt to mentioned the contentions raised by learned counsel for the

appellant:

8.1 Learned counsel for the appellant primarily submits that none of the three dying declarations inspire confidence, especially in the absence of any

other corroborative cogent piece of evidence. It is submitted that first statement of the deceased Ex. P-21 dehati nalishi was recorded in violation of

the mandatory provisions of Sec 742(c)(2) of the M.P. Police Regulations, for which the decision of this Court rendered in the case of Bhagatram &

Others Vs. State of M.P. reported in 1990 JLJ 329 (para 14-16) is pressed into served. In regard to Ex. P-21 , it is also submitted by the appellant that

revelation made therein by the deceased is shrouded in suspicion because while disclosing that Suresh, the appellant caused gun-shot injury in the jaw

of the deceased when Shivraj Singh PW-3 and Pooran Singh were present with the deceased. In this regard, it is submitted that Shivraj Singh PW-3

has not supported the story of the prosecution while Pooran was not examined by the prosecution. Learned counsel for the appellant as regards the

2nd dying declaration i.e. Ex. P-28 recorded by the Dr. Shahid Hussain PW-12 submits that the same also does not pass the test of being a reliable

dying declaration as laid down by the Apex Court in the decision of Paparambaka Rosamma Vs. State of Andhra Pradesh reported in AIR 1999 SC

3455 (para 8) and Sheikh Bakshu & others Vs. State of Maharashtra reported in 2008 (1) SCCÂ Cr. 679, which primarily laid down that in the

absence of endorsement on the dying declaration that patient is in a fit mental state to make the statement, and also in the absence of endorsement

that the statement after having been recorded was read over to the deceased and was found to be correctly recorded, the dying declaration cannot be

made the sole basis for convicting an accused especially in the absence of any other corroborative piece of evidence. Lastly, in regard to the 3rd dying

declaration, Ex. P15 recorded by the Executive Magistrate PW-4, the same is attacked on similar grounds as raised in respect of  Ex. P-28. 8.2

Learned counsel for the appellant has also drawn the attention of this Court to the physical condition of the deceased at the time of recording of three

dying declarations. It is submitted by him that a bare perusal of the MLC Ex. P-6, the dying declarations Ex. P-15, P-21 and P-28 and the postmortem

report Ex. P-10 reveal that the maxilla and the mandible bones (the upper and the lower jaw bone) suffered multiple fractures which means that they

were broken into more than two pieces. In this factual background, it is submitted that it was impossible for the deceased to move his lower jaw and

with this kind of physical disability, it was impossible for the deceased to have spoken even a single word, much less giving three long statements

which are the three dying declarations. In this context, learned counsel for the appellant has also attacked the opinion of the doctor expressed in the

said testimony that despite the physical disability of broken jaw, the deceased was able to speak with difficulty.

8.3 It is lastly submitted by the appellant that in the face of evidence on record in shape of para 28 and 31 of the deposition of PW-2 Dr Shahid

Hussain that a crowd had gathered at the place of recording the dying declaration, the possibility of the deceased being tutored by his well-wishers

who gathered around him cannot be ruled out, rendering the dying declaration vitiated as not reflecting the version of the deceased.

On the other hand, learned counsel for the State relying upon various decisions in the cases of Rokad Singh Vs. State of M.P. reported in 1994

MPLJ 57, Munna Raja & another Vs. The State of Madhya Pradesh reported in AIR 1976 SC 2199 and Jaiprakash Vs. State of Haryana

reported in 1999 MPWN Note 38 contended that once the doctor who is an expert in his field has opined that the deceased at the time of recording of

dying declaration is fit, the Court cannot sit over the said opinion of an expert and render a contrary finding.

9.1 It is also submitted by the State that the trial Court has rendered the correct verdict of appellant being guilty based on the three dying declarations

which cannot be brushed aside merely because written statement not having read over to the deceased or deceased being not in a fit mental state,

was not recorded by the scribe of the dying declaration submitted that the form should not be allowed to take precedence over substance.

Learned counsel for the rival parties do not dispute that the death of the deceased was a homicide and also that in the absence of any ocular

evidence, the case deserves to be decided solely on the basis of the three dying declarations Ex. P-21, P-28Â and P15. Therefore, it would be

appropriate to indulge in a microscopic analysis of the said three dying declarations which are as follows:

EXHIBIT P-21: FIRST DYING DECLARATION RECORDED AT THE SPOT BY SUB-INSPECTORÂ JITENDRA SINGH BHADORIYA

PW-12

The dehati nalishi Ex. P-21 recorded which later on death acquired the character of dying declaration after the death of the deceased, was

recorded at 4:30 p.m. on 14.05.1988 on the spot where the incident took place by the Sub-Inspector. This dehati nalishi discloses the place of

residence of the deceased and the incident that when the deceased was sitting at the watchmaker shop, the appellant alongwith the two acquitted

accused came, the appellant fired with his gun towards the deceased who sustained gun-shot injury in the head. Ex. P-21 also discloses that appellant

and acquitted accused Parmal were on inimical terms with the deceased. The deceased further discloses that Shivraj Singh PW-3 and Pooran Singh

were present at the spot and who saw the deceased being shot. Exhibit P-21 further discloses that the shopkeeper Papoo alias Kamruddin PW-1

who was sitting in the shop also witnessed the incident. The statement further discloses that the deceased fell down after being shot. Lastly, Ex. P-21

reveals that the deceased states that he is reporting the matter and cannot sign since he has sustained injury in his hand. At the end of dehati nalishi

Ex. P-21, the deceased has affixed his thumb impression.

11.1 The above said Ex. P-21 which is recorded as a dehati nalishi is supposed to be a statement of the deceased when he was injured, but has been

recorded in a manner which is normally adopted while recording a dehati nalishi. It is neither in a question answer form nor it appears to be written in

a natural manner with which a seriously injured man who is expecting to die will make any statement. The said Ex. P-21 therefore cannot be

categorized as a dying declaration, since it does not truly reflect the disclosures made by the deceased. The said Ex. P-21 seems to be an

amalgamation of the disclosure made by the deceased about the incident which is put on paper by the police personnel Sub-Inspector Jitendra Singh

Bhadoriya in his own script by adding certain words and sentences which actually do not appear to have been uttered by the deceased in the natural

course of events. The said dehati nalishi is more a narration of the incident by the Sub-Inspector in his own language.

11.2 Statutory precautions contained in Regulation 742 of the M.P. Police Regulations have also not been kept in mind while recording a dying

declaration

11.3 For ready reference and convenience, provisions of Regulation 742 are reproduced below:

742

(a) xxxx

(b) xxxx

(c) Signing of a statement recorded â€" The only circumstances in which a statement taken down in writing by a police officer making an investigation

is to be signed by the person making it are when the deponent is in a moribund condition and the statement is practically a dying declaration. If a

magistrate is near at hand, and the declaration is one that in the event of the deceased's death would be relevant under Section 32 of the Indian

Evidence Act, the Magistrate should be asked to attend and record the statement of a dying person. In accordance with the provisions of Section 165,

Criminal Procedure Code.

If the attendance of a magistrate cannot be secured, without the risk of such person's death before his statement can be recorded, the investigating

officer will record the dying declaration in accordance with the following instructions:

(1) If possible, such person shall be examined by a medical officer with a view to ascertaining that he is sufficiently in possession of his reason to

make a credible statement.

(2) Such statement shall be recorded in the presence of two or more credible witnesses unconnected with the police department. If such credible

witness cannot be obtained without risk of such person's death before his statement can be recorded, it will be recorded in the presence of one or

more police officers. This rule does not apply when a gazetted officer is present.

(3) If any person is accused by the dependent of having been concerned in the transaction which threatens to result in his death, such person should

be allowed to be present if he wishes while statement is being taken down.

(4) The statement must be headed with declarant's name, father's name, caste and residence and should consist of questions and answers. The

answers must be taken down from the declarant's lips word for word exactly as he utters them, and must not be afterwards added to or corrected in

any way. The date and time of recording the statement must be recorded and the statement must be signed or otherwise attested by the deponent, the

recording officer and the witnesses. A Court will not place any confidence in a dying declaration which has been recorded in the words of the

recording officer and not in those of the declarant himself.

11.4 From the above, it appears that the precautions and pre-requisites prescribed in the M.P. Police Regulations have not been adhered to. Neither

the police personnel recording the dehati nalishi, Ex.P-21, mentioned in the same that doctor is not available nor took signature of two witnesses which

is mandatory under Clause 742 of the Regulations thereby rendering Ex.P-21 an unreliable document not safe to secure a conviction by itself.

EXHIBIT P-8: SECOND DYING DECLARATION RECORDEDÂ BY DR. SHAHID HUSSAIN PW-2

The second dying declaration was recorded at 4:45 p.m. on 14.05.1988 by PW-2 Dr. Shahid Hussain vide Ex. P-8. The appellant Suresh has been

named as the assailant who inflicted the gun-shot injury because of past animosity and the co-accused Parimal and Thakuri were accompanying the

appellant Suresh at the relevant point of time. Ex. P-8 contains a certification that the deceased was fully conscious at the time of recording of dying

declaration

12.1 This Ex. P-8 admittedly does not contain the certification of doctor that the deceased was in a fit mental and physical state at the time of

recording of dying declaration. A mere certification of the injured being fully conscious does not by itself establish that the injured was also in a fit

mental and physical state to give a dying declaration.

12.2 A mere absence of certification in the dying declaration that the injured deceased was in a fit state of mind to give the statement despite the other

certification of the injured deceased being conscious, is a hyper-technical anomaly which by itself cannot render a dying declaration untrustworthy.Â

The certification of deceased being in a fit state of mind is merely an act of caution and its absence, if subsequently supported by deposition of

the doctor concerned who has recorded the dying declaration that the injured deceased was in a fit state of mind to make the statement, then the dying

declaration cannot be rendered inadmissible merely because of absence of certification of fitness of mind. In this regard, three Judges Bench decision

of the Apex Court in the case of Laxman Vs. State of Maharashtra reported in 2002 (6) SCC 710 is worthy of reproduction:

The juristic theory regarding acceptability of a dyingdeclaration is that such declaration is made in extremity, when the party is at the point of death

and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to

speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on

account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is

the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with.

Since the accused has no power of crossexamination, the court insist that the dying declaration should be of such a nature as to inspire full confidence

of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a

result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and

had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental

condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious

state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of

the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of

communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such

statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is

recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a

magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be

made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently,

what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.

What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it

is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration

can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution

and therefore the voluntary and truthful nature of the declaration can be established otherwise.

Bearing in mind the aforesaid principle, let us nowexamine the two decisions of the court which persuaded the bench to make the reference to the

Constitution Bench. In Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 the dying declaration in question had been

recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he

was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient

was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and

genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious

while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the

dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji & Another vs. State of Gujarat 1999(9) SCC 562

it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before

recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied

upon the earlier decision. In Ravi Chander vs. State of Punjab 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor

the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a

disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against

the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not

arise.

12.3 The above cases resolved earlier two conflicting views, one in the case of Paparambaka Rosamma Vs. State of A.P. reported in 1999(7) SCC

695 on one hand and the case of Koli Chunnilal Savji Vs. State of Gujarat reported in 1999(9) SCC 562 on the other hand.

12.4 The said three Judges Bench decision in Laxman(supra) held the decision in the case of Paparambaka (supra) to be not correctly decided while

confirmed the ratio laid down in the case of Koli Chunnilal(supra) which laid down that if the material and evidence attending the case otherwise

indicates towards the deceased being fully conscious and capable of making the statement, a mere absence of certification of doctor of the injured

deceased being in a fit state of mind to give the statement does not render the dying declaration untrustworthy.

12.6 In view of the law laid down by the Apex Court, it would not be safe to base the conviction solely on the basis of the said dying declaration Ex.

P-8 in the absence of any other cogent substantive piece of evidence.

EXHIBIT P-15 â€" DYING DECLARATION PENNED DOWN BY THE NAYAB TAHSILDAR SHRI R.K. WAGHRI PW-4

Ex. P-15 was recorded by Nayab tahsildar Shri R.K. Waghri PW-4 at 7:15 p.m. on 14.05.1988 disclosing that when the deceased was sitting at

the shop, appellant Suresh came and shot him. Deceased in this dying declaration further reveals that the appellant Suresh was accompanied by

Parmal and Thakuri. Deceased also disclosed in Ex.P-15 that he did not have any past animosity with appellant Suresh and lastly submits that two

bullets were shot at him. This dying declaration contains the certification that the patient was conscious and fit for giving dying declaration. At the

bottom of this dying declaration, there is a further certification recorded at 6:25 p.m. that the patient was fully conscious and the statement was read

over to him, the thumb impression which is presumably of the deceased is appended at the end of the statement.

13.1 This dying declaration Ex. P-15 prima-facie appears to satisfy the basic pre-requisites necessary for an admissible and believable dying

declaration. The necessary certification and the question answer form adopted to record Ex. P-15 is very much present. Exhibit P-15 has been proved

by PW-4 Nayab Tahsildar in his testimony. PW-4 in para 10 of his deposition revealed that the deceased owing to his injury was speaking slowly, but

clearly. PW-4 has denied the suggestion that when the utterances of the deceased were incomprehensible, then PW-4 use to record as per prompting

of the crowd which was present at the time of recording of Ex.P-15.

From the above comparative analysis of the three dying declarations. Ex. P-21, Ex. P-8 and Ex. P-15, it comes to light that the first two dying

declarations Ex. P-21 and Ex. P-8 lack trustworthiness for reasons mentioned (supra), while the last dying declaration Ex. P-15 recorded by the

Nayab Tahsildar PW-4 inspires confidence, as it does not suffer from any of the infirmities which can render a dying declaration, inadmissible in

evidence.

The learned counsel for the appellant argued the aspect of physical disability of the deceased at the time of recording of dying declarations, with

great vehemence. It is submitted by him that the kind of injury sustained in the lower and upper jaw, both of which were broken in pieces more than

two, it was physically impossible for the deceased to even utter a single word, especially those words which require movement of mandible, the lower

jaw bone.

15.1 The above argument appear on its face to be attractive. It is note worthy that those words which were spoken with consonants (alphabets other

than vowels) require joining of lips for being pronounced which necessarily involves movement of lower jaw, the mandible bone. In this factual

background, it is submitted that when the deceased in the injured state could not have possibly uttered any word beginning with or containing a

consonant and since all the three dying declarations are replete with words which comprise of consonants, the said dying declarations are

manufactured pieces of evidence and do not reflect and true utterances made by the injured deceased.

15.2 The above arguments of learned counsel for the appellant is quite attractive and the Court is tempted to accept the same, but the opinion of

expert PW-2 Dr. Shahid Hussain comes in way. PW-2 has been questioned in detail about the said physical ability/disability of the injured deceased.

PW-2 has categorically deposed that the injured deceased despite having sustained multiple fractures of his mandible and maxilla bone could speak,

though slowly which was audible and clear for PW-2 to have recorded the 2nd and 3rd dying declaration. If the opinion of PW-2 who is an expert in

the field is to be believed then it naturally follows that the admissible dying declaration Ex. P-15 which was recorded at 6:15 p.m., only 1 ½ hours

after the recording of Ex. P-8 (which was recorded at 4:45 p.m. and which has been held to be as inadmissible by this Court))ought to be treated as

the last two dying declarations of the deceased. This Court is not qualified to take a different view in respect of the ability or disability of the deceased

to be capable to speak at the time when the dying declaration was recorded, in the face of the expert Dr. Shahid Hussain opining in the affirmative.

These arguments of learned counsel for the appellant that in the face of serious injury sustained by the deceased, he possibly could not have spoken,

cannot be accepted.

It is settled principle of law that if a dying declaration is proved to be fully reliable and inspiring confidence, without suffering from any infirmities

of law, can alone be relied upon to convict the accused. In that regard, the decision of Apex Court in the case of Atbir Vs. Government of NCT

Delhi reported (2010) 9 SCC 1 can be profitably referred to.

Relevant portion of which are reproduced below:

The same view has been reiterated by a three- Judge Bench decision of this Court in Panneerselvam Vs. State of T.N. and also the principles

governing the dying declaration as summed up in Paniben Vs. State of Gujarat.

The analysis of the above decisions clearlyshows that:

(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the Court.

(ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of

tutoring, prompting or imagination.

(iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The

rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) Merely because a dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement

cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not be discarded.

(ix) When the eye-witness 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 present case, the Doctor PW-2 and the Nayab tahsildar PW-4 both have stated that the deceased was fully conscious and in a fit mental

state to give the statement i.e. Exhibit P-8 and P-15 and therefore there is no reason for this Court to disbelieve the said two dying declarations

Exhibits P8 and P-15 which squarely implicate the appellant Suresh 18. From the above discussion, what follows is that the verdict of conviction

returned by the trial Court cannot be found fault with.

Consequently, the appeal deserves to be and is therefore rejected.

In case, the appellant is on bail, his bail bonds be cancelled and warrant of arrest be issued to enable him to suffer the remaining part of sentence

as awarded by the learned trial Court.