Ramchandra & others vs State of Madhya Pradesh

This appeal under Section 374 of Cr.P.C. has been directed against the judgment dated 17.01.2005, passed by Session Judge, Chhindwara, in

S.T.No.207/2002, wherein the appellants have been convicted for offence under Section 302 r/w section 34 of the IPC and sentenced the appellants

to life imprisonment with fine of Rs.500/-, and in lieu of fine, additional sentence of six months.

Appellant No.1/Ramchandra died during the pendency of the appeal, therefore, his name has been deleted from the array of the parties on

25.09.2014. This judgment is therefore, being pronounced with regard to appellants No.2 Kunjilal and No.3 Manaji.

Factual matrix of the prosecution case, in brief, is that on 9. 06.2002, at about 11-12 pm Baburao was sleeping near his door. The accused persons

Ramchandra, Kunjilal and Manaji armed with axe came to the spot and inflicted injury to Baubu Rao with common intention. Baburao sustained

injuries on his forehead and other parts of body. Baburao was then rushed to hospital Sousar because he was serious, was referred to District

Hospital, Chhindwara, hence information send to Police Sonsar, registered Crime No.0/2002 for offence under Section 302 r/w 34 of the IPC.

Requisition was sent for examination of injured Babu Lal. On 09.06.2002 Babu Lal was examined by Dr.Sharad Bansod (PW-1). Baburao sustained,

5 incised wound on the face, forehead left eye brow, right eyebrow swelling on the left side of the mandible, lacerated wound on chin and swelling of

the right hand. The Medical Officer submitted his report Exhibit P/2. A letter was sent to Tahshildar, Sausar for recording the dying declaration of

Baburao. The Tehshildar was not available. Hence the Medical Officer recorded the dying declaration of Baburao, which is Exhibit P/3.

During the course of treatment Baburao died. His dead body was send for postmortem. The Postmortem report is Exhibit P/13 reveal that cause of

death is haemorrage on the subdural intracranial and injury on vital organs. Merg was lodged after inquest it was found that accused Ramchandra,

Kunjilal and Manaji with common intention caused the injury to Babu Rao. On the memorandum of Ramchandra a wooden Ubhari has been seized.

On search from the house of accused Ramchandra, house of appellant Kunji Lal was searched and spot map was prepared. After due investigation,

charge-sheet has been filed before the Additional Chief Judicial Magistrate, Sausar. Subsequently, the case was committed to the Sessions Court.

Learned Sessions Court framed charge for offences under Section 302, in alternative offence under Section 302 r/w section 34 of the IPC. The

appellant abjured guilt.

The learned Sessions Judge vide judgement impugned convicting the accused-Ramchandra and the appellants-Kunjilal and Manaji for offence under

Section 302 r/w section 34 of the IPC sentenced them as mentioned above.

On behalf of the appellants the judgment has been assailed on the grounds that the appellants are innocent. There is no eye witness. Injured

Baburao was admitted in the hospital. The dying declaration was recorded by the Medical Officer is the only basis for conviction.

There are contradictions and omissions in the statements of prosecution witnesses. Bandu (PW-5) and Ashok (PW-4) have been declared hostile.

Prosecution has failed to record the statement of dying declaration of Baburao by Executive Magistrate. The prosecution failed to prove that the injury

caused to the victim was by the appellants.

Learned Govt. Advocate for the respondent/State vehemently opposed the contentions and it is stated that the dying declaration Ex.P/3 recorded by

the Medical Officer has been unchallanged. The Medical Officer having no interest in the case has recorded the dying declaration. Therefore, there is

no reason to suspect the genuineness of the dying declaration and to doubt the contents of the dying declaration.

In this regard reliance has been placed on Mohd. Hussain Ansari Vs. State of NCT Delhi, 2005 CRLJ 4437 and Lakhan Lal Vs. State reported as

1995 CRLJ 2699.

Perused the record and the judgment impugned. Baburao sustained the injuries as per the MLC report (Exhibit P/2) prepared by Dr. Sharad Bansod

(PW-1). Subsequently, as the injuries were grievous, the injured Babu Lal was referred to District Hospital, Chhindwara for treatment. But on

10.06.2000 Baburao died. His postmortem report is Exhibit P/13. Dr.Ravi Tadekar (PW-8) has drawn the same. Baburao received (1)incised wound 3

cm x 1 cm bonedeep in the right side of forehead, (2) incised wound 3 cm x 1 cm x 1.5 cm on the left of cheek just below the left eye, (3) lacerated

wound 3 cm x 2 cm muscle deep on the center of forehead, (4) incised wound 2 cm x 1 cm deep right side of the forehead just above the right eye,

(5) lacerated wound 4 cm x 3 cm bonedeep over the chin (there was bony deformity) and (6) swelling deformed nose.

According to Dr.Ravi Tendakar (PW-8), death was caused due to injuries to the vital organs and because of haemorrage in the brain. It is

therefore, proved that Baburao died a homicidal death.

Whether the appellants were responsible for the injuries caused to Baburao?

Kashiram (PW-2) is the father of Baburao. According to him, Baburao was living separately at his house. Kashiram is living with Dev Rao, his

second son. The neighbor of Baburao came to him and informed about the injuries caused to Baburao. He and his wife Anubai went to the house of

Baburao and with the help of bullock-cart took the injured-Baburao to Sausar from the village. At the hospital treatment began. Baburao informed him

and his wife that three persons Ramchandra, appellant-Kunjilal and another person, whose name he did not remember, caused the injuries. Two of the

accused persons held Baburao and the third one inflicted injury by an axe. Why the accused persons inflicted injury to Baburao he did not tell them.

Anubai (PW-3) mother of the deceased (Baburao) has fully supported the statement of Kashiram and named the accused persons as

Ramchandra, Kunjilal and Manaji. According to her Baburao informed them that the accused persons inflicted injuries to him by means of axe.

Baburao was shifted to Sausar hospital. At the Hospital Sausar, statement of Baburao was recorded. From there Baburao was shifted to District

Hospital Chhindwara for treatment.

Dr.Sharad Bansod (PW-1) the Medical Officer, Sausar has stated that when Nayab Tehshildar was not available for recording the dying

declaration of Baburao. he recorded the dying declaration. The dying declaration (Exhibit P/3) has certified that Baburao was in a fit condition to

depose his statement. Before recording the dying declaration (Exhibit P/3) he certified that Baburao was in a fit condition to give his statement. Very

briefly, Baburao has replied the 09 questions.

“Q.1.What is your name?

A. Baburao Uikey.

A. Kashya Uikey. Q.3. Where do you live?

A. Pipal Gaon.

A. Kunji, Ramchandra and Manaji. Q.5. How injuries are caused?

A. By axe.

A. At the same village. Q.7. Was there any enmity? A. No.

A. At about 11:00-12:00 in the night. Q.9. Whether you want to say anything?

A. No.â€​

After this statement the Medical Officer again has certified that Baburao was fully conscious during his statement. The left hand thumb

impression was also taken on the dying declaration.

S.S.Sengar (PW-9), was the TI, Police Station, Mehgoan on the date of incident. According to him, on the information of constable Durjan Lal

Crime No.36/2002 was registered. Exhibit P/14 is the FIR. Subsequently, he investigated the matter. On the basis of memorandum of accused

Ramchandra, a “ubhari†has been seized from him vide Exhibit P/6 seizure memo. From the place of incident plain soil and blood stain soil has

been seized. From the house of Ramchandra, on the basis of search panchnama (Exhibit P/9), an axe stained with blood was seized. Exhibit P./10 is

seizure memo. During the investigation house of Kunjilal was also searched. A cloth has been seized. Talashi Panchnama is Exhibit P./11. Seizure

Memo is Exhibit P/12. He prepared spot map Exhibit P./15. The seized articles were sent for examination to the Foreignsic Science Laboratory for

examination. The report received from the FSL is Exhibit P./2. Blood in the axe was found disintegrated. The seizure witnesses Ashok (PW-4),

Bandu (PW/5) have been declared hostile. But, they have admitted their signatures in Exhibit P./5 (memorandum) and seizure memo (Exhibit P./6).

In the case of Muthunachi Vs. State reported as 2011 (5) Cr.L.J. 2047, the Apex Court has held that, if independent witnesses admit their

signatures it can be accepted their presence at the plcae.

In the case of Journal Singh Vs. State of Panjab reported as 2011(3) SCC 521, the Apex Court has held that the prosecution witnesses can not be

discarded as unreliable if their evidence is sustained in the test of cross-examination, even if the eye witnesses turn hostile, they can be relied upon and

form basis for conviction.

In the case of Ashok @ Dangra Jaiswal Vs. State of M.P, reported in 2011(5) SCC 123 (B). The Apex Court has held that, “given the verdict

that even independent witnesses turn hostile is not uncommon. The statement of police witness can be considered and if found reliable can be found

the basis for conviction.â€​

The seizure of the axe and ubhari can not be disbelieve. In the case of Ramesh Harijan Vs. State of U.P. reported as 2012 (5) SCC 777, the Apex

Court has held that “it is duty of the Court to unravel the truth under all circumstances. Thus, undue importance not to be given to minor

discrepancies, which did not shake the basic version of prosecution case.â€​

The dying declaration given to Kashiram (PW-2) and Anubai Bai (PW-3) by injured Baburao can not be suspected to be untrue for Kasahiram

and Anubai (PW-2 and PW- 3) have no enmity with the accused persons. Their statements also support the Exhibit P/3, the dying declaration

recorded by the Medical Officer Dr.Sharad Bansod (PW-1). In the case of Lakhan Lal(supra) the Division Bench of Delhi High Court, has held that

the dying declaration made by the deceased before a Police Officer is admissible and can be relied for conviction, even not recorded before the

Magistrate. The Court relied on the case of Ramavati Devi Vs. State of Bihar, AIR 1983 SC164.

The present dying declaration has been recorded by a responsible Medical Officer who has no interest in the case, nor has any enmity against

accused persons.

In the case Mohd.Hussain(supra) the High Court of Delhi has also held that the dying declaration recorded by the Doctor who is completely

disinterested witness and is a responsible Officer, cannot be brushed aside and there is no circumstances and material on record to suspect that.

Besides, Doctor has no animus against the accused or was in anywhere interested for fabricating the dying declaration. Therefore, the said dying

declaration can not be doubted in any manner.

The Apex Court in the case of Laxam Vs. State of Maharashtra, reported as JT 2002(6) SC 313, has held that conviction could also be based on

the dying declaration, if the same is found to be truthfull and reliable.

Dr.Bansod (PW-1) has stated that the deceased was conscious and he made aforesaid statement and he recorded the statement given by the

deceased. Since the statement recorded by Doctor and he specifically denied the suggestion given by the defence, that the deceased was not in a fit

condition to make statement. This statement (dying declaration) of the deceased, recorded by doctor cannot be disbelieved.

Having said so, it would be appropriate to hold that the dying declaration (Exhibit P/3), statement of Dr.Bansod (PW/1), and the statements of

Kashiram (PW/2) and Anubai (PW/3), if considered together, the prosecution has successfully established the commission of offence by the

appellants.

The prosecution case based on dying declaration is legal and valid and, therefore, can be relied for upholding conviction and sentence imposed by

learned trial Court on the appellants finding then guilty under Section 302 r/w 34 of the IPC.

In the case of State of U.P. Vs. Ram Sagar, AIR 985 SCC 416, it is held that if dying declaration is acceptable as truthfull, even in the absence of

corroborative evidence, the Court can act upon it and convict.

For the foregoing reasons this Court is of the opinion that the judgment impugned do not call for any interference, hence this appeal is dismissed.