An FIR (Ext.P17) was allegedly lodged by the victim
Shyam with the Police Station Ujjain to the effect that
he was working in the Malaria Department and on
17.10.1997 he was standing near his shanty behind Ashok
Talkies. He was attacked by Rupa, Hari 'the Tempowala'
and the son of Nathu. These three people surrounded him
and started beating him. They alleged that he had taken
some money from them which he did not return, which he
denied. Then Hari 'the Tempowala' and the son of Nathu
took out knives and both of them attacked him with knives
on the left side near the spine on the back and below the
ribs. The son of Nathu gave knife blows on the waist and
two other places. In the meantime, Ramchander Dholi
(PW.12) reached the spot. According to the informant, the
ARJUN BISHT occurrence was witnessed by his son and daughter, Kallu
and Kallo.
On the basis of this oral complaint, initially a
case was registered under Sections 341, 294, 323, 506,
307 read with 34 IPC but in the original FIR it appears
that there is overwriting in respect of Section 307. The
informant was taken to hospital where he was admitted.
The bed head ticket (Ext.D1) shows that the informant was
admitted in hospital on 18.10.1997 at about 12.30 a.m.
The bed head ticket also shows that at about 1 am the
condition of the Shyam was not good and he had presumably
ingested some alcohol; he had multiple stabs on his back;
his general condition was poor; his pulse was 60 beats
per minute and his blood pressure was not recordable. His
condition kept deteriorating and at 3.30 a.m. it is
recorded that his general condition was poor and blood be
arranged for transfusion and he died soon thereafter.
After his death, the FIR was converted to one of
murder and Section 302 IPC was added. During the course
of investigation, the weapons of offence were allegedly
recovered from the accused and thereafter report under
Section 173 Cr.P.C. was filed and the accused were put to
trial. The accused pleaded not guilty and claimed trial.
During the course of trial, all the material witnesses
turned hostile. The son was not examined and from the
record it is not forthcoming what is the reason for not
examining him. The daughter who was examined was only a
child witness, aged about 10 years, and she did not
support the prosecution at all. She has been cross-
examined with her statement, recorded under Section 161
Cr.P.C. by the police, but in our view a 10 years old
child cannot understand what is the effect of such
contradiction and will never be able to explain them.
That leads us with the statement of the injured
eye-witness Ramchander (PW-12). As far as the incident is
concerned, he does not deny the incident. He does state
that occurrence took place. He also states that in this
occurrence he was attacked with a sword and that sword
caused injuries to him running from the cheeks to eye.
However, his statement is that immediately after the
occurrence he and Shyam were taken to the hospital.
Further, according to this witness, it was dark and he
could not identify who had attacked him. He denied having
given the names of the accused in the statement under
Section 161 Cr.P.C.
The accused have been convicted by the Trial Court
which conviction has been upheld by the High Court
basically on two dying declarations. The first dying
declaration being in the nature of the FIR and the second
dying declaration being the statement of the deceased
Shyam recorded under Section 161 Cr.P.C. by the
Investigating Officer (PW-14).
We shall deal with the second dying declaration
first and see what reliance can be placed in that. This
so called dying declaration is Ext.P20 and it is a
statement recorded by PW-14 under Section 161 Cr.P.C. It
is stated to have been recorded on 18.10.1997 but the
time of recording the same is not mentioned anywhere in
the statement. This statement gives details of how the
deceased allegedly told the investigating officer that he
was attacked by the three accused and injured by them.
The issue is what reliance can be placed in this regard.
As pointed out above the bed head ticket (Ext.D1) showed
that at 1 am the condition of Shyam was very poor and his
blood pressure was not recordable. Unfortunately, in the
bed head ticket it is not mentioned whether the patient
was conscious or unconscious.
We shall now deal with the statement of PW-14. The
relevant portion of the statement of PW14 is that he met
the injured Shyam, for the first time in the hospital on
18.10.1997 between 1.15 to 1.25 am. He also states that
the condition of Shyam was serious. He then asked the
doctor about the condition of the deceased for recording
his statement. The Doctor said that Shyam is not in a
position to make a statement. He then stated that this
happened at about 2.30 a.m. He then says that he
submitted an application in writing to the doctor
presumably about the condition of the deceased. However,
such application has not been placed on record.
Therefore, it is not clear at what time this application
was sent to the doctor, whether immediately after 1.15
a.m. or after 2.30 a.m. This witness also states that he
deputed Sub-Inspector Sharma to record the dying
declaration of the deceased. After having said this, he
says that he himself felt at about 1.15 a.m. that the
deceased was in a position to make a statement and
therefore recorded his statement under Section 161
Cr.P.C.
The statement of this witness does not inspire
confidence as far as the recording of statement under
Section 161 Cr.P.C, which is now sought to be treated as
dying declaration. He first states that when he reached
the hospital the condition of injured was serious and
when he asked the doctor, the doctor replied that injured
was not in a position to make a statement. In the later
half of his statement, he says that he recorded the
statement at 1.15 a.m. This means that he recorded the
statement of Shyam immediately on reaching the hospital.
If that be true then he has recorded the statement
without even asking the doctor whether the injured was in
a fit position to make a statement.
No doubt, in a statement recorded under Section 161
Cr.P.C. signatures of the witness are not to be affixed.
In fact, that would make such a statement inadmissible
under Section 161 Cr.P.C. However, in a case like the
present one where the condition of the injured was
serious and his blood pressure was not recordable,
without getting the opinion of the doctor that the
patient was in a fit condition for making statement his
statement should not have been recorded. The manner in
which the statement has been recorded casts a grave doubt
with regard to the admissibility and evidentiary value of
the statement. We make it clear that we are not in any
way indicating that such a statement cannot be read as a
dying declaration. However, we are of the opinion that
this so-called dying declaration does not meet the test
of a verifiable dying declaration on which reliance can
be placed to convict the accused.
The first dying declaration is the so-called FIR
which has also been proved by scribe of the FIR (Ext.P17)
who states that he recorded the statement verbatim, as
told to him by the injured Shyam. There are some
signatures in the portion marked 'B' to 'B' of Annexure
P-17. In cross-examination a suggestion was put to this
witness that these are not signatures of the deceased.
He, obviously, has denied the suggestion. The fact of the
matter is that the deceased was a Government employee.
His signatures would have been available in the
Government records. The prosecution made no effort to
compare the signatures on the FIR, with the signatures in
the official records to prove that both are by the same
person. This is total lapse on the part of the
prosecution.
The manner in which the FIR has been lodged casts a
doubt with regard to the veracity thereof. As per the
FIR, the incident took place at about 10 p.m. on
17.10.1997. The FIR was recorded at about 11.35 p.m.
From the facts proved on record by PW-13 as well as the
investigating officer, the distance of the police station
from the place of occurrence is one kilometer and it will
not take more than 10-15 minutes to reach the police
station. There is no explanation why the FIR was not
recorded immediately thereafter at 10.30 p.m. or 10.45
p.m. and why it took more than an hour for the injured to
reach the police station. We make it clear that we are
not indicating that the delay is fatal to this case, but
in the peculiar facts of the case delay becomes important
because here the informant is an injured who had received
four pierced wounds and one lacerated wound. Natural
course of events would have been to take such seriously
injured person straight to the hospital or to get medical
attention from the nearest dispensary or hospital. Even
if he had to go to the police station first, it should
not have taken so much time.
Another aspect of the matter is that the
descriptions given of the accused are (1) Rupa, (2) Hari
'the Tempowala' and (3) son of Nathu. We are constrained
to observe that both the Trial Court as well as the High
Court have gravely in holding that the burden was on the
defence to prove that there were no other persons of this
name in the locality. This is totally contrary to the
settled principle of criminal jurisprudence. It is for
the prosecution to prove who is Rupa; who is Hari 'the
Tempowala' and who is son of Nathu. No evidence has been
led in this regard except the second so-called dying
declaration in which details of all these three persons
are given. It is indeed surprising that when the injured
was not in so serious a condition and he could go to the
hospital he did not give the details of the persons but
when he was in a condition which was described to be poor
and when his blood pressure was not recordable he gives
details and the names of the persons. This casts doubt on
the fairness of the investigation also.
In this view of the matter, we are clearly of the
view that there is a reasonable doubt as to the identity
of the persons and the accused have not been linked
clearly with the offence and the benefit of doubt has to
be given to them. We may also note that the other
witness, who turned hostile, is an injured witness. Why
should a person who is injured by the same set of
assailants turn hostile unless some evidence was led to
show that he has been pressurized. The mere suggestion
that he was pressurized is not sufficient to come to this
conclusion. As far as the non-examination of the son is
concerned, we are not saying anything in this regard
because from the record we cannot make out what was the
age of the son. The appellants are on bail. Their bail
bonds stand discharged.
In view of the above discussion, we allow the
appeal, set aside the judgments of the High Court and the
Trial Court and acquit the accused.
New Delhi September 05, 2019
Criminal Appeal No(s).1660/2010
HARI SINGH & ANR. Appellant(s)
VERSUS
THE STATE OF MADHYA PRADESH Respondent(s)
Date : 05-09-2019 This appeal was called on for hearing today.
CORAM :
For Appellant(s)
Mr. Chanchal Kumar Ganguli, AOR
For Respondent(s)
Mr. Harsh Parashar, AOR
Ms. Tanvi Bhatnagar, Adv.
Mrs. Swarupama Chaturvedi, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed non-reportable
judgment.
Pending application(s), if any, stands disposed of.
(signed non-reportable judgment is placed on the file)