Ballu Jatav vs State of Madhya Pradesh

S.K. Palo, J.—Being aggrieved by the judgment dated 24.08.2001 passed by IV Additional Sessions Judge, Gwalior in Sessions Trial No. 01/2001 by which the accused/appellant has been held acquitted u/s 302 of IPC and sentenced to life imprisonment with fine of Rs.5,000/- and in lieu of fine, rigorous imprisonment for one year has been imposed, the accused/ appellant has filed this appeal u/s 374 of Cr.P.C.

It is not disputed that Geeta was married to Mukesh Koli. Due to their wedlock two children namely Sonu and Mamta are born. Geeta was living with her husband and family as a tenant in the house of accused/appellant situated at Madanpura, Gwalior.

The prosecution story before the learned Trial Court, in brief, was that on 24.08.2000, Geeta Bai wife of Mukesh, who was the tenant of the accused Ballu Jatav, lodged first information report (Ex. P-7) at about 08:30 AM stating that Ashok resident of Nimbaji Ki Khoh had come to meet Geeta Bai. When he was going back, Geeta Bai accompanied him to the road to see him off. The landlord/accused/appellant was standing there armed with a sword. The appellant asked to Ashok, why does he come to meet Geeta. When Ashok replied that who is he to question, the accused inflicted a blow by sword on the head of Ashok and subsequently caused several injuries on his body. On her shouting, several neighbours came to the scene. Geeta also mentioned that she had consumed poison because she was defamed. After lodging the report, Sub-Inspector Shri R.N. Pachauri, Police Station, Gwalior, took thumb impression of Geeta in the report. On the basis of her report, Crime No. 692/2000 u/s 302 of IPC was registered against the appellant and against Geeta another Crime u/s 309 of IPC was registered for attempting to commit suicide, thereafter, she was sent for medical examination.

During her treatment, Geeta died. Ashok, who sustained injuries, also died in the incident. Their dead bodies were sent for postmortem. During the investigation blood stained earth and plain earth were seized by Panchnama (Ex. P-5) from the spot. The cycle, which was used by Ashok, was seized by Panchnama (Ex. P-6). Spot Map (Ex. P-4) was prepared. Accused was arrested by Panchnama (Ex. P-12) and on his memorandum (Ex. P-13), the sword was seized (Ex. P-14). After the investigation, charge-sheet has been filed.

On explaining the charges, the accused abjured guilt. He has submitted that he had gone to bring vegetables from Mandi and he returned at 12:00 noon. Because of enmity, he has been falsely implicated.

Learned Trial Court, after adducing evidence, pronounced the judgment of conviction for offence u/s 302 of IPC and sentenced the accused/appellant as stated above.

The appellant has challenged the impugned judgment on the several grounds. It is claimed that during the course of writing the FIR (Ex. P-7), Geeta died. Her statement has been taken as dying declaration u/s 32 of Cr.P.C. by the learned Trial Court, is bad in the eyes of law. At the time of the incident, Dharmesh Koli was said to be present. Neither his statement u/s 161 of Cr.P.C. was recorded nor he was examined in the court. The learned Trial Court did not call him as a court witness. Therefore, it is a legal flaw. The eye witnesses examined in this case did not support the police version. These witnesses were not believed by the court. Independent witnesses Arun (PW-11) and Narayan Mandal (PW-12) were said to be witness of memorandum. They did not support the police story. Even then the learned Trial Court recorded conviction. Apart from this, there has been contradictions in vital points, which the learned Trial Court over looked. The appellant requested to set aside the impugned judgment.

We have considered the submissions made by the appellant and perused the record.

Mukesh Koli husband of deceased Geeta has been examined as PW-2. According to him, he was married to Geeta 15-16 years ago. They have two children Sonu (6 years) and Mamta (8 years). As per his statement, the deceased Ashok was visiting his house frequently. His wife was having illicit relationship with Ashok. Even after his objections, Ashok used to visit his house. Therefore, he left that house along with his children to reside at Laxmiganj. Prior to that he resided at Madanpura in the rented house of accused Ballu for 4-5 months. He further narrated that the accused used to visit that place. Therefore, he left that place along with his two minor children. He came to know on 23rd of 8th month, his wife is dead. Police prepared Panchnama. Mukesh/husband of deceased cremated the dead body of deceased Geeta. He has not uttered a single word about the so called Ballu causing injuries to deceased Ashok. Babulal (PW-1) also silent on this point and was declared hostile.

The two minor children Mamta (PW-7) and Sonu (PW-8) did not speak anything about the incident. Kamta Prasad (PW-3) is the Panch witness and witness to this spot map and seizure of blood stained earth and plain earth. Bhagwan Das (PW-5) has not supported the prosecution case. Veerendra Singh (PW-10) is also a witness to Safina Form (Ex. P-15) and Panch witness of deceased ''Geeta''.

Arun (PW-11) and Narayan Mandal (PW-12) are said to be witnesses of memorandum Ex. P-13, by which, the accused has disclosed about the sword and subsequently it was discovered and seized by Ex.P-14. But these two witnesses also did not support the prosecution case.

In the present case, it is alleged that the accused Ballu Jatav caused injuries by sword and thereby caused the death of Ashok.

Dr. J.N. Soni (PW-13), Assistant Professor, Forensic Medicine, G.R. Medical College, has deposed that he examined the corps of deceased Ashok Kushwaha on 24.08.2000. He found 31 injuries in the body of the deceased. He opined that death was caused due to shock and haemorrhage as a result of multiple injuries caused by sharp penetrating object. It is evident that because of the injuries, Ashok died. The next question is whether the accused has caused the injuries ?

No eye witness is available in the present case. Dharmesh is the person who is said to have accompanied deceased Geeta to lodge the report, has not been examined. The whole prosecution story hinges on the FIR (Ex.P-7). R.N. Pachauri (PW-4), Sub-Inspector of Police Station Gwalior, is the scriber of the FIR (Ex. P-7). According to him, Geeta Bai wife of Mukesh came to the police station and lodged the report at about 08:30 AM. According to him, Geeta narrated that when Ashok had come to meet her. When he was going back from her house, accused Ballu armed with sword asked him, why he is visiting Geeta. On his reply that who is he to question him, with the intention to kill accused Ballu caused injuries to Ashok Kushwaha. On her shouting, people of that area gathered at the scene of crime. Ashok fell on the ground and died. Accused Ballu became ran away towards the market carrying the sword. Because Geeta became defamed, she consumed poison. As per report (Ex. P-7), Dharmesh accompanied Geeta while she went to lodge the FIR. Thereafter, she was sent for medical examination. During her treatment, Geeta died. No valid reason has been assigned as to why Dharmesh was not examined.

Learned Trial Court relied on State of Rajasthan Vs. Kishore, and Bhola Turha Vs. State of Bihar, deemed report Ex. P-7 lodged by Geeta just before her death as dying declaration. In both the cases of Kishore (supra) and Bhola (supra), the statements were made by the person who died in relation to the injuries caused to them.

In both the cases Hon''ble the Supreme Court has observed that the general principle on which the species of evidence is admitted is that �declaration 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 silent and mind induced by the most powerful consideration to speak the truth.

In Dharam Pal and Others Vs. State of U.P., the Hon''ble the Supreme Court has held as under:-

"(C) Evidence Act, 1872 - S. 32(1) - Dying declaration - FIR, admissibility of - Report of occurrence dictated by injured, recorded by police officer at police station - Injured dying thereafter - FIR destroyed not brought on record - Treatment of such report as dying declaration - Conviction on basis of - Legality - Held, the report dictated by the deceased fully satisfied all the ingredients for being made admissible as a dying declaration -It contains a narrative by the deceased as to the cause of his death, completely corroborated from the testimony of eyewitnesses and the medical evidence on record - Despite best efforts, the original FIR could not be produced as the registers relating to non-cognizable offences were destroyed after a lapse of two years � Criminal Procedure Code, 1973 - S. 154 - FIR - Admissibility of as dying declaration."

(D) Evidence Act, 1872 - S. 32(1) - Dying declaration - Admissibility in evidence -Principles governing dying declaration restated - The principle on which a dying declaration is admissible in evidence is indicated in the maxim -nemo moriturus praesumitun mentire- which means that a man will not meet his maker with a lie in his mouth -A dying declaration may be relating to : (a) as to the cause of death of the deceased, (b) as to "any of the circumstances of the transaction" which resulted in the death of the deceased - It is also clear that it is not necessary that the declarant should be under expectation of death at the time of making the statement."

It can be said that a dying declaration may be relating to the cause of the death of the deceased be as �any of the circumstances of the transaction" which resulted in the death of the deceased. In the present case, we are not considering the report Ex.P-7 as �dying declaration" in regard to death of deceased Geeta, who lodged the report but we are considering the same as to the death of Ashok.

On behalf of the respondent, learned Panel Lawyer has submitted that the learned Trial Court, accepting the FIR (Ex. P-7) as dying declaration, has not committed any error and the impugned judgment and the conviction is proper in the eyes of law. This is a case where the basis of conviction of the appellant is the dying declaration. The principle on which dying declaration is admitted, the evidence is indicated in the legal maxim "nemo moriturus praesumitun mentire" which means "man will not meet his Maker with a lie in his mouth". It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence, though the dying declaration is entitled to great weight. Such a power is essential for eliciting the truth as an obligation of oath could be.

In our opinion, the FIR (Ex. P-7), which was written by the R.N. Pachauri, Sub-Inspector (PW-4), is recorded not in connection with the death of Geeta but it was scribed in connection with the so called murder of deceased Ashok. We shall not forget here that it is not the dying declaration of deceased Ashok. Eventually, we, therefore, did not agree with the learned Trial Court in accepting the FIR (Ex. P-7) as "dying declaration". In our opinion, the learned Trial Court erred in holding the FIR (Ex. P-7) as dying declaration u/s 32 of the Indian Evidence Act, 1872. Section 32(1) of the Indian Evidence Act, renders statement relevant, which was made by a person, in which cause of his death comes into question. But it is admissibility depends upon one of the two conditions; Either such statement should relate to the cause of his death or it should relate to any of the circumstances of the transaction which resulted in his death. The collocation of the words Section 32(1) of the Indian Evidence Act, 1872 "circumstances of the transaction which resulted in his death" is apparently of wider amplitude, then saying "circumstances which cause his death". The contents of FIR lodged by deceased Geeta may be admissible u/s 32(1) of the Indian Evidence Act, 1872, but is not a "dying declaration". But it may be a circumstance of the transaction which resulted into death of Ashok. In this regard, we refer to the case of Vinay D. Nagar Vs. State of Rajasthan, . Relevant portion reads as under:-

"We have analysed the statement of the deceased Kalu made to the police u/s 161 CrPC. We do not find that the statement of the deceased was in regard to the cause of his death, or was to any of the circumstances of the transaction which resulted in his death. The statement is in regard to the accused''s involvement in the abduction of a boy and has no remote connection or reference to the death of the deceased and thus would not be admissible u/s 32 of the Evidence Act. The statement recorded by the police although could be proved as there would not be any bar u/s 162 CrPC for proof of such statement, but it would not be admissible u/s 32 of the Evidence Act, and thus it could not have been relied upon by the prosecution to prove the motive for commission of the crime by the accused appellant."

Our view is fortified by the judgment rendered in Rattan Singh Vs. State of Himachal Pradesh, In which it is held that:-

"On the night of the occurrence all the inmates of deceased''s house were sleeping in the courtyard of the house. At about 11:00 P.M. the deceased''s mother-in-law woke up sensing that somebody had intruded into their privacy and asked others whether anyone was there. Suddenly the deceased cried out that the appellant, who was known to her, was standing there with a gun. This was followed by the sound of gun shot and pellets had delved into her body. The question before the Supreme Court was whether the statement of the deceased that the appellant was standing with a gun is admissible in evidence. It was held by Supreme Court that when the deceased made the statement that the appellant was standing with a gun she might or might not have been under the expectation of death. But that does not matter. The fact spoken by the deceased has subsequently turned out to be a circumstance related to the transaction which resulted in her death. Therefore, the statement would become admissible under s 32(1) of the Evidence, though not as dying declaration, but as a circumstance of the transaction which resulted in her death."

As no other evidence is available on record to implicate the accused / appellant and the so called dying declaration, in the above circumstances, may be treated as a document though can be used as a corroborative piece of evidence, but by itself cannot be deemed to be a proof of the fact stated in the document.

We, therefore, feel that the appellant/accused is entitled to be given the benefit of doubt.

In the circumstances, we allow this appeal and set aside the impugned judgment dated 24.08.2001. Bail bond and surety bond of the appellant stands discharged. The fine amount, if deposited, be refunded to the appellant.