Devi Shanker vs State of Rajasthan

Raghuvendra S. Rathore, J.—Heard the learned Counsel for the Appellant as well as the learned Public Prosecutor.

This appeal, u/s 374 Code of Criminal Procedure, has been filed by the accused-Appellant challenging the order dated 7.11.1985 passed by learned Sessions Judge, Kota in Sessions Case No. 97/85 whereby he has been convicted u/s 304 Part II IPC and sentenced to seven years rigorous imprisonment and a fine of Rs. 500/-, in default of which to further undergo one month rigorous imprisonment.

He has also been convicted u/s 324 IPC and has been sentenced for one year rigorous imprisonment and a fine of Rs. 250/-, in default of which to further undergo 15 days rigorous imprisonment.

In short, the prosecution case is that one Abdul Sattar lodged a report on 8.3.1985 at about 6.15 pm. This report was in respect of an incident, which took place on 7.3.1985 at about 8.00 pm. at his residence situated Indira Gandhi Nagar, Kota. It is stated in the report that in the evening of 7.3.85 when the informant Abdul Sattar was sitting outside the house of Bherulal Sunar, Devi Shanker, Ramavatar, Radhey Shyam and Hemraj came. Devi Shanker demanded Rs. 20/- on knife point. Bherulal told him to keep away the knife and that he was bringing the amount. Bherulal then went away. Abdul Sattar had also gone. Later, he was informed by a boy that some quarrel had taken place at his residence and when he went there, he found all the four persons namely; Devi Shanker, Radhey Shyam, Ramavtar and Hemraj standing. Devi Shanker inflicted a knife blow on his right and left hip and Ramavtar gave a "Sariya blow on his left knee and at the back of his head. Resultantly, the informant Abdul Sattar fell down. Thereafter his brother Mohammed Amin came to rescue him but Devi Shanker inflicted a knife blow on his private parts. His wife Jahida and sister Rashidan also came to rescue but they were also injured by Devi Shanker with the knife. Subsequently Badrinath and other neighborers collected and they had seen the incident.

On the aforesaid report, police registered a case against all the four persons at Police Station, Udhyog Nagar, Kota for the offence u/s 307 IPC. The investigation then commenced and after recording of the evidence including that of the eye-witnesses etc., challan came to be filed on 11.4.1985 before the Court concerned. It is to be noted that during the course of investigation, Rashidan died on 11.3.85 and as such the case was converted into one u/s 302/34 IPC. Thereupon learned Magistrate committed the case to the Court of Sessions Judge, Kota.

The learned Sessions Judge, Kota framed charges against accused-person Devi Shanker for the offences under Sections 302 and 324 IPC and against Ramavtar, Hemraj and Radhey Shyam for the offences under Sections 302/34 and 324/34 IPC. All the accused-persons denied charges and claimed for trial. The prosecution, in support of its case, produced 11 witnesses and also filed the documents collected during the course of investigation, which were duly exhibited. The statements of the accused were then recorded u/s 313 Code of Criminal Procedure Against they had denied the allegations levelled against them by the prosecution. On completion of the trial, the learned Sessions Judge, Kota convicted and sentenced accused-Devi Shanker for the aforesaid offences. However, the accused-persons namely; Radhey Shyam, Hemraj and Ramavtar were acquitted from the charges levelled against them. Hence, the present appeal.

The learned Counsel for the accused Appellant has assailed the impugned judgment dated 7.11.1985 passed by the learned trial Court on various grounds. He has submitted that keeping in view the evidence on record produced by the prosecution, no offence is made out against Appellant Devi Shanker as they have failed to prove the case beyond reasonable doubt. He has also submitted that all the prosecution witnesses, except Mohammad Amin had not supported the case of the prosecution and as such they had to be declared hostile. In respect of Mohd. Amin, PW.5 also, the learned Counsel for the accused-Appellant has submitted that a perusal of his statement in its entirety would go to show that he does not support the prosecution case in respect of basic facts of the case. He has particularly referred to the cross-examination of the said prosecution witness.

It has also been submitted by the learned Counsel for the Appellant that other ground on which the learned trial Court has based its finding as well as the judgment is the statement of deceased Rashidan, which was recorded by the police u/s 161 Code of Criminal Procedure According to him, the said statement could not have been treated as a dying declaration and there was no question of forming it as the basis for holding the accused-Appellant guilty of commission of the crime. In this regard, he has submitted that it is a settled principle of law that a statement recorded u/s 161 Code of Criminal Procedure, in case of death of the witness, cannot be treated as a dying declaration u/s 32 of the Evidence Act. In support of his submission, he had placed reliance on the case of Sukhar Vs. State of Uttar Pradesh, and the case of Munnawar and Ors. v. State of Uttar Pradesh, JT 2010(4) SC 505.

Contrary to it, the learned Public Prosecutor has supported the judgment passed by the learned trial Court and submitted that the same does not suffer from any illegality or infirmity. He has also submitted that the judgment passed by learned Court below is based on legal evidence on record and it cannot be said that the prosecution has failed to prove its case beyond reasonable doubt. He has supported the findings of the learned Court below in respect of the reliability of the statement of Mohd. Amin, PW.5 and the statement of deceased Rashidan recorded u/s 161 Code of Crimianl Procedure, during the course of investigation and submitted that it should be treated as her dying declaration, on her death which occurred later on. Therefore, the learned Public Prosecutor has submitted that the appeal filed by the accused-Appellant deserves to be dismissed.

On having given my anxious and thoughtful consideration to the facts and circumstances, evidence on record, and the submissions made by the counsels for the rival parties, I am of the view that this appeal has merit.

Apart from the material facts with which the prosecution had unfolded its case, they had come with five eye witnesses namely; Abdul Sattar, (PW.1); the informant Jahida, (PW. 2); Bheru Lal, (PW. 3); Mohd. Khan, (PW. 4) and Mohd. Amin, (PW. 5). It may be noted here that, as many as, four eyewitnesses which included the informant Abdul Sattar had not supported the prosecution case and as such they had to be declared hostile. Even in respect of the fifth witness namely; Mohd. Amin, PW.5, the learned Public Prosecutor had to seek permission for his cross-examination, at the time of reexamination, of the witness. Ultimately, the prosecution case hinges only on the statement of the deceased Rashidan, which was recorded by the police, before her death, u/s 161 Code of Criminal Procedure, during the course of investigation and on the statement of Mohd. Amin (PW. 5).

A look to the statement of Mohd. Amin goes to show that, at the initial stage, he had supported the prosecution case by deposing that it was Devi Shanker, who had inflicted knife injury to his sister Rashidan. He had also stated that he is not knowing the other three persons who are said to have accompanied accused-Devi Shanker. In the cross-examination, the prosecution witness had made some important disclosures, which runs contrary to his earlier statement, such as:

On careful consideration of the testimony of Mohd. Amin, (PW-5), particularly the aforesaid facts, reveals that his presence at the time of incident is doubtful. His knowledge about the incident and the involvement of the accused in it, appears to be based on subsequent information received, mainly from the members of the investigating party. Therefore, in my considered opinion it would not be safe and proper to rely upon the testimony of the said witness, much less to say, to form the basis of the conviction of the accused-Appellant.

Second question which requires consideration, is as to whether the statement of the deceased Rashidan recorded u/s 161 Code of Criminal Procedure can be taken into the category of a dying declaration. Apart from the fact that a dying declaration is one which fulfills the requirement u/s 32 of the Evidence Act, certain procedure for recording of the same has been prescribed, such as the signature of the maker, witnesses attestation by the doctor about fitness of the person etc. etc. It is a settled principle of law that a statement recorded u/s 161 Code of Criminal Procedure cannot be considered as a dying declaration of the deceased. In the case of Sukhar (supra), the Hon''ble Supreme Court, in para No. 5, had observed as under:

On an appeal, the High Court came to the conclusion that the FIR as well as the statement given by the injured to the Investigating Officer is not admissible as dying declaration u/s 32 of the Evidence Act, and in our view, the said conclusion is unassailable. The High Court further came to the conclusion that the statement of the injured u/s 161 of the Code of Criminal Procedure could not be held admissible in evidence u/s 33 of the Evidence Act and we do not see any infirmity with the said conclusion.

Similarly, in the case of Munnawar (supra) the Apex Court, in para No. 4 had held as under:

We have considered the arguments advanced by the learned Counsel for the parties very carefully. It is true, as contended by Mr. Sushil Kumar, that PW Dhani Ram Arya the Police Officer had recorded the statement of Fateh Mohammad in the case diary as being one u/s 161 of the Code of Criminal Procedure It is also true that this statement had not been recorded in the manner provided by the Police Regulations with regard to the recording of dying declarations by the Police Officers.

Left at this stage perhaps, the judgment of the Supreme Court in Balak Ram''s case (supra) would apply and the accused would be entitled to submit that this dying declaration could not be relied upon, but we notice that a second dying declaration had also been recorded by the Executive Magistrate PW Rajdev Singh and that this statement was in substance identical with the statement recorded by Dhani Ram.

As mentioned above, a statement u/s 161 Code of Criminal Procedure as well as a dying declaration cannot be equated and placed on the same pedestal, for reasons more than one. Another important aspect of the matter is and well settled since long, that a dying declaration recorded by a Investigating Officer is to be considered with caution and only after holding that the same fulfills all the requirements under law, the same is to be relied upon. In this light, it may be relevant to note the observation made by the Hon''ble Supreme Court in the case of Balak Ram Vs. State of U.P., as under:

The second dying declaration is alleged to have been made -to the Investigating Officer, Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on dying declaration made to an Investigating Officer. Yogendra Sharma says that while Tribeni Sahai was lying in a car at the scene of offence he made a statement implicating the accused. Yogendra Sharma produced a true copy of the an entry in his case diary stating that even as he was still in the car, he recorded the dying declaration in the case diary which he was carrying with him. It is difficult to appreciate why, if there was time enough to reduce the dying declaration into writing. Yogendra Sharma did not obtain Tribeni Sahai''s signature or atleast the signatures of any of the large number of persons who had surrounded the car. Rule 115 of the U.P. Police Regulations expressly enjoins the Investigating Officer to record a dying declaration, if at all, in the presence of two respectable witnesses and after obtaining the signature or mark of the declarant at the foot of the declaration. Besides, if the Investigating Officer was in such haste that he did not even think it proper to wait at the police station until the various columns on the first page of the FIR were duly filled in, it is rather difficult to believe that seized by such a pressing sense of emergency, he would take the case diary with him on the off-chance that a dying declaration may be in the offing.

For the aforesaid reasons, the inevitable conclusion is that in the instant case neither the statement of the deceased u/s 161 Code of Criminal Procedure nor the statement of the prosecution witness Mohd. Amin (PW-5) can form the basis to hold that the prosecution has proved its case beyond reasonable doubt. Undisputedly, there is no other evidence on record produced by the prosecution, which can be said to have supported their case because all other witnesses including the informant had to be declared hostile. Consequently, the case against the accused-Appellant has not been proved and prosecution''s case has to go. Neither from the oral evidence or otherwise, it has been provide by the prosecution that the accused-Appellant had committed the offence alleged. In such view of the matter, it has to be held that the accused-Appellant is entitled to acquittal.

Consequently, this appeal succeeds and it is hereby allowed. The impugned judgment dated 7.11.1985 passed by Sessions Judge, Kota in Sessions Case No. 97/1985 is quashed and set aside. The accused-Appellant Devi Shanker S/o Shri Mangi Lal is acquitted from all the charges leveled against him. He is on bail, his bail bonds stands discharged.