Mukesh Kumar and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Instant appeal, under Section 374(2) of Code of Criminal Procedure, 1908, has been preferred by seven accused-appellants, namely (i) Mukesh Kumar s/o Nanagram, (ii) Kailash Kumar s/o Ramchandra, (iii) Puran s/o Ramchandra, (iv) Boduram s/o Ramchandra, (v) Banwari Lal s/o Nanagram, (vi) Bhagwana Ram s/o Kishan and (vii) Manki @ Banti @ Vijaykumar s/o Suwalal. They were tried by the Court of Additional District & Sessions Judge, (Fast Track), No. 2, Sikar, Camp at Srimadhopur in Sessions Case No. 08/2003, for causing murder of one Shishpal s/o Bhiwaram, on 28.08.2003 at around 03:00 P.M. in the field of Shishpal, situated in Village Saledipura-Jhakhara, Police Station, Khandela, District Sikar.

The Court of Additional District & Sessions Judge (Fast Track), No. 2, Sikar, Camp at Srimadhopur, vide its impugned judgment dated 23.08.2007, held appellant No. 1, Mukesh Kumar to be guilty for offences punishable under Sections 148 , 302 , 324 , 447 and 325 /149 of Indian Penal Code. Whereas remaining six accused were convicted for offences punishable under Sections 302 /149 , 148 , 447 , 324 /149 and 323 of Indian Penal Code.

Having convicted the appellants for the above said offences, the trial Judge, vide a separate order of even date, sentenced them as under:--

"Appellant No. 2, Mukesh Kumar:

"For offence under Section 302 I.P.C. he was sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine to further undergo one year additional simple imprisonment.

For offence under Section 148 I.P.C. he was sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

For offence under Section 447 I.P.C. he was sentenced to undergo one month rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

For offence under Section 324 I.P.C. he was sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

For offence under Section 325 /149 I.P.C. he was sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

Appellant Nos. 2 to 7:

For offence under Section 302 /149 I.P.C. they were sentenced to undergo life imprisonment each and to pay a fine of Rs. 10,000/- each. In default of payment of fine to further undergo one year additional simple imprisonment each.

For offence under Section 148 I.P.C. they were sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

For offence under Section 447 I.P.C. they were sentenced to undergo one month rigorous imprisonment and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

For offence under Section 324 /149 I.P.C. they were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

For offence under Section 323 I.P.C. they were sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs. 500/- each. In default of payment of fine to further undergo fifteen-days additional simple imprisonment.

All the sentences were ordered to run concurrently."

Aggrieved against the conviction and sentence, all these seven accused have instituted the present appeal praying interalia that their conviction and sentence, be set aside, and they be acquitted of the charges leveled against them.

As stated earlier by us that Shispal had died in the occurrence. He sustained as many as nine-injuries in the alleged occurrence.

In the present case, the criminal proceedings were set into motion on the basis of parchabayan/statement (Exhibit-P/30) made by Shispal before A.S.I. Rajendra Singh (PW-15), who was then posted at Police Station, Khandela, District Sikar.

The said parchabayan/statement (Exhibit-P/30) was duly attested by Dr. B.P. Agarwal (PW-9).

The said parchabayan/statement (Exhibit-P/30), which has been later termed as dying declaration, when translated into English reads as under:--

"Parchabayan/statement of Shishpal s/o Bhiwaram, by caste Meena, aged thirty-five years, resident of Saledipura-Jhakhara, Police Station, Khandela, at present admitted for treatment at Community Health Centre, Khandela. Dated 28.08.2003 Time 10:05 P.M.

Stated that today on 28.08.2003 I went to guard my field. At about 11:00 A.M. Saraswati wife of Bhagwana Meena, Dapoo wife of Suvalal and Kesri came to our field to take the grass, I restrained them from taking away the grass. Then they went away. Thereafter, at about 03:00 P.M. Mukesh and Banwari sons of Nanagram, Bunti @ Minki s/o Suvalal, Puran and Bodhu sons of Ramchandra Meena, Bhagwana Ram and Kailash came. Banwari asked me to make tea. I replied that I have already taken tea and you should make your own tea. Then suddenly Banwari slapped me, due to which I fell down. Mukesh armed with dantla (sickle) in his hand and caused me injuries on my head. Others accused, who were armed with sticks, caused me injury on the hands and feet, and broke my hand. While they were beating me, my nephew, Neki Ram, who was grazing camel there saw the entire incident. Jitu was also there. After beating me, all the accused came towards Village. My nephews went to our residence and narrated the entire incident to my brothers. Then Ramsingh, Kishan and Bodhu brought me to the hospital.

"L.T.I. Shishpal RO&AC

Rajendra Singh, A.S.I. Police Station, Khandela, 28.08.2003 at 10:35 P.M. Dr. B.P. Agarwal"

On the basis of above dying declaration, a criminal case was registered at Police Station, Khandela at 10:35 P.M.

On the intervening night of 28th & 29th of August, 2003 at 01:00 A.M. Shishpal succumbed to the injury and died in the hospital.

A perusal of above statement, which has been termed as dying declaration, reveals that the deceased had cited his two nephews, namely Nekiram (PW-8) and Jitendra Kumar (PW-11) as eye-witnesses.

Thus, the conviction of the appellants rests upon dying declaration and eye-witness account given by Jitendra Kumar (PW-11).

It is to be noted here that Nekiram (PW-8) has not supported the case of prosecution and took a stand in the Court that he had not seen the occurrence, as he had gone to the School.

We shall first take note of Medical Evidence.

Dr. B.P. Agarwal (PW-9) on 28.08.2003 at 09:30 P.M. had examined Shispal s/o Bhiwaram, aged thirty-five years and as per the Injury Report (Exhibit-P/28) found the following injuries on his person:--

"Incised - wound clotted blood.

6.5 x 0.6 x bone deep - occipito parietal region scalp (back)

Swelling with pain:

14 x 8 cm left wrist and joint.

18 x 10 cm right elbow at forearm upper

18 x 10 cm left ankle joint

16 x 10 cm right calf muscle

Abrasion with clotted blood.

0.3 x 0.3 cm skin deep left side of tibia

0.3 x 0.3 cm skin deep right side of tibia

0.3 x 0.3 cm skin deep right side of neck

0.3 x 0.3 cm skin deep right eye lid."

Shispal died in hospital on 29.08.2003 at 01:00 AM. and his autopsy was conducted on 29.08.2003 at 09:00 AM. While opening scalp, Doctor found haematoma in the brain and opined that the membrane and the brain were congested.

In the Post Mortem Report (Exhibit-P/29), Doctor opined the cause of death was head injury.

Mr. Biri Singh Sinsinwar, the learned senior counsel, duly assisted by Mr. Rajesh Choudhary, the learned counsel appearing for the accused-appellants, submitted that the dying declaration is accompanied by suspicious circumstances and, therefore, no credence ought to be granted to the dying declaration.

The Senior counsel appearing for the accused-appellants further submitted that during cross-examination, Dr. B.P. Agarwal (PW-9), admitted that the statement of injured was not recorded in his presence and the Investigating Officer had later obtained his signatures.

The exact words stated by Dr. B.P. Agarwal (PW-9), in the cross-examination, are reproduced as below:--

We have not appreciated the admission made by Dr. B.P. Agarwal (PW-9) in the cross-examination, as the Doctor, ought to have cautiously signed the statement. The said statement of the injured later upon death can be termed as dying declaration. The dying declaration is a solemn document. It is admissible under Section 32 of the Indian Evidence Act, as exception to the Rule of hearsay. The medical ethics and responsibility towards medico-legally cases require that the Doctor should act responsibly.

We are conscious that without issuing notice to the concerned Doctor, we cannot pass stricture against him, but still as a matter of advice, we direct Director, Health Services, State of Rajasthan to caution Dr. B.P. Agarwal to be careful in future and whenever statement of injured is recorded before appending his signatures or attestation, he should ensure that same is recorded in his presence.

We may note here that on the application given by the Investigating Officer (Exhibit-P/31), Doctor had given opinion that the deceased was fit to give the statement.

The senior counsel for the accused-appellants has disputed opinion Exhibit-P/31 by saying that the Investigating Officer admitted that same is a carbon copy and the original is not on the record. Learned senior counsel has contended that the carbon copy is not admissible until original being a primary evidence is brought on record.

We hesitate to add here that no objection was raised when opinion of the Doctor was assigned (Exhibit-31), thus, it is to be understood that the counsel for defence had waived of said objection.

Be that as it may, we shall still determine whether it is safe to rely upon the dying declaration (Exhibit-P/30).

In cross-examination, A.S.I. Rajendra Singh (PW-15) admitted that when statement (Exhibit-P/30) was recorded, at that time, Doctor and three brothers of the deceased, namely Kishan, Ramsingh and Bodhuram were present.

This witness (PW-15), in cross-examination, further stated as under:--

Ramsingh stepped into the witness-box as PW-4, whereas Bodhuram and Shrikishan appeared as PW-5 and PW-6.

Ramsingh (PW-4) stated that regarding the death of Shispal, he was informed by the Police at the hospital. He further stated that neither he had gone to the spot nor his brother had any talk with him.

Bodhuram (PW-5) was also declared hostile to the prosecution and stated that Nekiram (PW-8) has not told him as to how Shispal had died. He is totally silent regarding recording of dying declaration.

Shrikishan (PW-6) another brother of deceased was also declared hostile to the prosecution and he has also stated nothing regarding recording of dying declaration.

Thus, it is apparent that the Doctor, who attested dying declaration and three brothers, namely Ramsingh (PW-4), Bodhuram (PW-5) and Shrikishan (PW-6) in whose presence Rajendra Singh (PW-15) has recorded statement (Exhibit-P/30), have not supported prosecution case regarding recording of dying declaration.

Rule 6.22 of the Rajasthan Police Rules requires that if the dying declaration is not recorded by a gazetted police officer, same may be attested by two independent persons.

In the present case, there was no requirement to associate two independent persons, as A.S.I. Rajendra Singh (PW-15) had taken attestation of the Doctor, but Dr. B.P. Agarwal (PW-9) has left A.S.I. Rajendra Singh (PW-15) in lurch and had contradicted him by saying that the statement/parchabayan (Exhibit-P.30) was not recorded in his presence.

Therefore, as a matter of prudence and caution, we shall not rely upon dying declaration, as attesting Doctor has denied recording of dying declaration in his presence and three brothers of the deceased, who as per Investigating Officer, were also present at the spot, have not uttered a single word regarding recording of F.I.R.

Our observation is duly fortified by the law laid down by the Hon''ble Apex Court in the case of Smt. Paniben Vs. State of Gujarat, , where for appreciating dying declaration, law has been summed up as under:--

"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court on its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. ( Munnu Raja and Another Vs. The State of Madhya Pradesh, ).

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. ( State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, ), Ramawati Devi Vs. State of Bihar, ).

(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. ( K. Ramachandra Reddy and Another Vs. The Public Prosecutor, ).

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg and Others Vs. State of Madhya Pradesh, ).

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. ( Kake Singh Alias Surendra Singh Vs. State of Madhya Pradesh, ).

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. ( Ram Manorath and Others Vs. State of Uttar Pradesh, ).

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. ( State of Maharashtra Vs. Krishnamurti Laxmipati Naidu, ).

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. ( Surajdeo Ojha and Others Vs. State of Bihar, ).

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P., 1988 Supp SCC 152).

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. ( State of U.P. Vs. Madan Mohan and Others, )."

The mandate of law laid down in the case of Paniben (supra) require that when dying declaration is doubtful regarding its recording, corroboration ought to be sought.

Since in the present case, corroboration is not coming from Dr. B.P. Agarwal (PW-9) and Ramsingh (PW-4), Bodhuram (PW-5) and Shrikishan (PW-6), three brothers of the deceased, we shall keep dying declaration out of our consideration.

Now we are left with the testimony of two eyewitnesses, who have been named by the deceased, Shispal in his statement (Exhibit-P/30).

Nekiram (PW-8) nephew of the deceased following foot steps of the three brothers of the deceased had turned hostile to the prosecution. He deposed in the Court that on the day of occurrence, he was attending the school and had not witnessed the occurrence.

We are left with the testimony of solitary eyewitness, Jitendra Kumar (PW-11).

Jitendra Kumar (PW-11), in the Court, stated that on the day of occurrence, all the seven accused came and Mukesh Kumar caused injury with sickle on the head of Shispal. Thereafter, others accused caused injuries with lathis. The testimony of Jitendra Kumar (PW-11) has been vehemently assailed by the learned senior counsel of this Court. Learned senior counsel has argued that Jitendra Kumar (PW-11) is the solitary eye-witness examined by the prosecution.

Hon''ble Apex Court in the case of Vadivelu Thevar Vs. The State of Madras, , qua solitary eye-witness had laid following rule of appreciation of evidence:--

"Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:--

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution."

Mr. Sinsinwar, the learned senior counsel has drawn our attention to the testimony of Kailash (DW-1), Headmaster of the School, who had given Certificate (Exhibit-D/2), wherein it was recorded that on 28.08.2003 i.e. on the day of occurrence Jitendra Kumar (PW-11) had attended Government Upper Primary School, Saledipura Jakhara. He has also proved on record Exhibit-D/3 attendance register. Kailash (DW-1), Head-Master of the School was cross-examined by the learned Additional Public Prosecutor. In response to the question, Headmaster stated that timing of the school was 10:30 A.M. to 04:30 P.M. It is contended by the learned senior counsel that Jitendra Kumar (PW-11), aged about sixteen-years, was attending the School and he was not present at the spot.

We have perused the defence evidence.

Kailash (DW-1) has proved on record Exhibit-D/2, Certificate issued by the Head Master, Government Upper Primary School, Saledipura, Panchayat Samiti, Khandela, Sikar, that Jitendra Kumar Meena S/o Ram Singh Meena was a regular student of 7th Class and on 28.08.2003 he remained present in the School.

In support of the Certificate (Exhibit-D/2), Student Attendance Register of Class 7th has also been proved on record as Exhibit-D/3.

The cross-examination done by learned Public Prosecutor elicited a response of the witness, Kailash (DW-1) that the School timing on relevant day was 10:30 A.M. to 04:30 P.M.

Jitendra Kumar Meena, solitary eye-witness was cross-examined by the Counsel for the accused. In cross-examination, this witness (Jitendra Kumar) admitted that he is a student of Adarsh Bal Vidhya Madhyamik Vidhyalaya, Saledipura since 3rd Class. This witness initially took a stand that on the day of occurrence, he was on leave from the School. When pointedly questioned, this witness in the Court stated as under:--

In the Court, this witness (PW-11) further stated that he had gone to the School, got his presence recorded, after half an hour without permission of the Teacher had left School and came to the fields where his elder brother had gone to graze the camel.

Nekiram (PW-8) has stated that on the day of occurrence, he had gone to the School. The witness further stated that he had not grazed camel and he had not seen any occurrence.

When Nekiram (PW-8) was questioned regarding presence of Jitendra Kumar (PW-11), he in the Court stated as under:--

Thus, the School Record shows the presence of Jitendra Kumar (PW-11) in the School. Nekiram (PW-8) another eye-witness has ruled out presence of Jitendra Kumar Meena (PW-11) at the spot.

Even otherwise, we find that on the person of deceased, Shispal, as per Medico-Legal Report, there are nine injuries. Injury No. 1 was incised wound and bone deep on the occipito parietal region. Injury Nos. 2 to 5 were swelling with pain and Injury Nos. 6 to 9 were abrasions.

For the above said injuries, Jitendra Kumar (PW-11) has named as many as seven persons as accused. The solitary witness wants the Court to believe as if at the place of occurrence some theater was being enacted each accused came, gave one blow and stood aside at the place of occurrence. For nine injuries implication of seven persons, raise suspicion that the witness has indulged in over implication of accused.

Jitendra Kumar (PW-11), in the Court, has stated that Mukesh caused injury on the head and other accused caused injuries with sticks. False implication of number of accused by the witness make his entire testimony unreliable.

Therefore, taking into consideration the record of the School that Jitendra Kumar (PW-11) was present in the School, furthermore, his presence at the spot is denied by another eye-witness, Nekiram (PW-8), who has turned hostile to the prosecution and the fact that Jitendra Kumar (PW-11) has made an attempt to inflate the number of accused, we are of the view that it is not safe to rely upon the testimony of solitary eye-witness, therefore, we doubt the presence of Jitendra Kumar (PW-11) at the spot.

Having ruled out the presence of Jitendra Kumar (PW-11), as an eye-witness and having held that it is not safe to act upon the statement (Exhibit-P/30) made by the deceased as dying declaration, there remain no incriminating evidence with us to uphold the conviction of the appellants.

Consequently, as a result of above discussions, we accept the present appeal, set aside the conviction and sentence of the appellants and acquit them of the charges.