Chandu @ Chandrashekhar vs State of M.P.

S.R. Waghmare, J.—By this appeal u/s 374 of the Cr.P.C., the accused/appellant Chandu @ Chandrashekhar has challenged his conviction by judgment dated 30.09.2002 passed by XII Additional Sessions Judge, Indore in Session Trial No. 173/1999 convicting the accused for offence u/s 302 of the IPC and sentenced him to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine he was to under go further sentence to six months simple imprisonment. Brief facts of the prosecution case are that on 18.12.1998 the police station Khajrana received a telephone call by the phone operator Kantilal from M.Y. Hospital, Indore that one Kamal s/o Ghulji R/o village Hingoniya was brought in a dead condition on Saturday by Shivnarayan (P.W. 1). On receiving the information, Assistant Sub-Inspector M.K. Shrivastava (P.W. 12) recorded the merge intimation by Ex-P/14. Upon the investigation, police found that due to partition of family land, present accused Chandu had a dispute with his real brother Kamal and on the date of the incident i.e. 18.12.1998 the accused assaulted his brother with stick on the head and other vital parts of the body, as a result of which Kamal died. The FIR was filed by the police Ex-P/17 on these facts and ''lash panchnama''/inquest report was prepared Ex-P/2 and the postmortem report is Ex-P/11 was prepared. Upon query, the doctor by query reports Ex-P/12 and P/13 stated that death could have occurred by weapon ''lathi'' which was recovered and that the viscera was persevered by Ex-P/16 and the spot map is Ex-P/10, the recovery memo is Ex-P/8. On completion of the investigation, the offence was registered against the appellant and he was duly arrested and committed to his trial.

The accused abjured his guilt for offence u/S. 302 of the IPC and submitted that he was falsely implicated in the matter. The trial Court on considering the offence, however convicted and sentenced the appellant as hereinabove stated. Hence, this appeal.

Counsel for the appellant has vehemently urged the fact that the conviction is based on conjecture and surmises and there is no credible evidence on record regarding the implication of the present appellant. The evidence is not corroborated and conviction is based solely on oral dying declaration as per statement of Shivnarayan (P.W. 1) and Sundarlal (P.W. 6). The testimony of these two witnesses is highly unreliable and three different statements have been recorded of these witnesses which are variance with each other. Whereas merge statement Ex-D/15 and Ex-D/16 was recorded on 19.12.1998. The statement u/S. 161 Cr.P.C. of these witnesses was recorded on 07.03.1999 and the merge statement Ex-D/15 and Ex-D/16 does not reflect the oral dying declaration of deceased Kamal. This fact has come forth only in the statement recorded by the police u/S. 161 of the Cr.P.C. on 07.03.1999. Ex-D/15 and D/16 categorically give lie to the statement that there was oral dying declaration by deceased before either Shivnarayan (P.W. 1) and Sundarlal (P.W. 6). Moreover Counsel urged that even if the recovery is considered, one of the two witnesses has not supported the prosecution case. Counsel submitted that mother of the deceased Sarjubai (P.W. 7) has not been very reliable and she has also denied the presence of Shivnarayan and Sundarlal on her cross examination. Moreover injuries suffered by deceased was an old injury and hence on query reports Ex-P/12 and Ex-P/13 should not be relied on. Moreover considering the fact that the Investigating Officer Assistant Sub-Inspector M.K. Shrivastava (P.W. 12) has stated that he had received a phone call from M.Y. Hospital that one Shivnarayan had brought one Kamal s/o Ghulji in dead condition, it was not possible for the deceased to give any oral dying declaration to these two witnesses. Moreover Counsel submitted that recovery is also doubtful and Counsel vehemently urged that the conviction has solely based on oral dying declaration ought to be set aside since there was no credible evidence on record. Counsel prayed that the conviction be set aside.

Counsel for the respondent/State on the other hand fully supported the judgment of the Trial Court and prayed for dismissal of the appeal. Counsel submitted that it was based on proper appreciation of evidence and the witnesses Shivnarayan (P.W. 1) and Sundarlal (P.W. 6) have been found to be reliable by the Trial Court and there was no need to doubt on their testimony. They have categorically stated this fact to (P.W. 2) Devkanyabai, wife of the deceased when she had returned home. They told her that he was lying down when Shivnarayan and Sundarlal had come to her house and she has also deposed in Court that her uncle Shivnarayan had informed her that before losing conscious, her husband narrated to Shivnarayan that the accused had assaulted him with lathi on his head. Hence Counsel prayed for dismissal of the appeal.

On considering the above submissions, after perusing the evidence on record and the impugned judgment, we find that the appeal needs to be allowed and conviction needs to be set aside. The sole question that arises for our consideration is whether the oral dying declaration made before Shivnarayan (P.W. 1) and Sunderlal (P.W. 6) can be relied on for conviction. Primarily the two witnesses Shivnarayan (P.W. 1) and Sunderlal (P.W. 6) are inimical witnesses being the uncle of Devkanyabai, wife of the deceased

It has come in the testimony of Sarujbai (P.W. 7), the mother of the deceased that they used to frequently quarrel with deceased Kamal; prior of the date of incident, also he had been injured when returning from the parental home of his wife Devkanyabai. In fact Sarjubai (P.W. 7) has accused both these witnesses of killing her son. Moreover even testimony of Devkanyabai (P.W. 2) is considered, she (Devkanyabai) is not very reliable since the evidence adduced by her would be hear say and she was not present at the place of incident and had gone to another village to give polio medicine to her infant child. And she had returned home only on hearing about the death of her husband deceased Kamal. In these circumstances the entire testimony of these two witnesses would stand demolished. Moreover as urged by the Counsel for the appellant the Ex-D/15 and Ex-D/16 have been minutely scrutinized by us. We find that Ex. D/15 that Shivnarayan has stated that the date of the incident they met with Jagdish, Samandar and Maansingh on the field, who informed they that deceased Kamal, their son-in-law was fighting in the field and on reaching the house they have reported as follows:

We find that these witnesses have not stated that the deceased made any conversation with them; whereas their statements u/S. 161 Ex-D/1 and Ex-D/2 of Cr.P.C. were recorded after the period of almost three months. They have stated thus Ex-D/2:

These are the statements recorded at the merge inquest of Shivnarayan and Sunderlal by Investigating Officer M.K. Shrivastava (P.W. 12), who has been confronted with these fact in impugned para 8 of his deposition before the Court. He has been unable to explain the delay as to why after three months the statements of these witnesses were recorded on 04.03.1999. He stated that no application has been received to this effect and he has however, denied that the statements were concocted.

At this juncture, it would be even important to note that third brother of the deceased Jagdish (P.W. 5) has turned hostile in Court. However, he stated that there was some friction between Shivnarayan, Sunderlal and deceased Kamal and that there was another time prior to incident in which Kamal had been injured. He has also deposed that the agricultural land belongs to Sarjubai (P.W. 7) and had not been partitioned, he however denied that there are no dispute regarding the same and he has turned hostile in Court. Thus it would be proper to rely on this witnesses entirely. But according to well known principles of criminal jurisprudence the entire testimony of a hostile witness need not be discarded and under the circumstances, the fact cannot be lost sight of that these two witnesses on whose testimony the oral dying declaration had been relied by the trial Court becomes highly suspicious.

The clinching witness, however, would be Sarjubai (P.W. 7) since Sarjubai categorically referred to a dispute between the Shivnarayan and deceased Kamal. These witnesses being uncle of Devkanyabai had chided the deceased Kamal for ill treating their niece and regarding the agricultural land belonging to Sarjubai. Apparently the bone of contention seems to be agricultural land belonging to Sarjubai, which she was not willing to part with. And since witnesses are interested witnesses it would be highly crucial to place reliance on such discrepant evidence.

In the alternate analysis, we find that the conviction of the accused should be based on evidence which is unshakeable and no other inference but that of conviction is possible. However, in the present case, grave suspicion is raised regarding the oral dying declaration by the unusual delay regarding u/S. 161 of the Cr.P.C. and non mention of oral dying declaration in inquest statements of these two witnesses Shivnarayan and Sunderlal. Admittedly the present case is based on circumstantial evidence because of there is no eye-witness on account. Therefore, if the circumstances are taken together, they should make a complete chain and point to the guilt of the accused; none of the circumstances should be compatible with the hypothesis of his innocence. In the present case the mere statements of these two witnesses and deposition in Court regarding the dying declaration by the deceased without any corroboration would not be sufficient to establish the guilt of the accused appellant. And the accused appellant, therefore, deserves to be acquitted. Suspicion however strong cannot be take place of proof and we find that trial Court had erred in convicting the accused on the basis of the oral dying declaration, the conviction is therefore, set aside. The accused Chandu @ Chandrashekhar is acquitted of the offence u/s 302 of the IPC. The appeal is allowed. Appellant is on bail and his bail bond and surety bond are, therefore, hereby discharged. A copy of this order be sent to the concerned lower Court for compliance.

Cc. as per rules.