State Of Rajasthan vs Jagan Singh

Avneesh Jhingan, J

The State of Rajasthan is in appeal against the order dated 22.12.1994 passed by the Additional Sessions Judge, Sikar in Sessions Case No.14/87, acquitting the accused-respondents for the offences under Sections 147, 148, 302/149 & 460 IPC.

The brief facts are that the statement (parchabayan-Ex.P.10) of Tara Singh (hereinafter referred to as ‘the deceased’) was recorded at 6:00 AM on 24.11.1985. It was stated that in the night intervening on 23/24.11.1985 at around 12:00 AM he was attacked at his home by the accused named therein who had come in two jeeps armed with knives, lathis and barchas. Girdhari chakkiwala and Jawahar Singh Paldi intervened to save the deceased. The cause of incident was old enmity. The deceased was not aware of the specific injury inflicted by each of the accused. The deceased fell unconscious and was brought to the hospital. On the basis of the statement, FIR No.213/85 was registered u/s 147, 307, 323 IPC at Police Station Kotwali, Sikar. The deceased succumbed to injuries on 25.11.1985 and thereafter, Section 302 IPC was added. Before death of the deceased on 24.11.1985 at around 6:00 AM, the dying declaration (Ex.P.9) was recorded by the Magistrate. The statement u/s 161 Cr.P.C (Ex.P.19) of the deceased was also recorded. The challan was filed against fifteen persons. During trial, Rajindra Singh and Roop Kishore @Kishore Singh died and Mahipal Singh was absconder, who later died. The charges were framed u/s 147, 148, 302/149 and 460 IPC. The prosecution examined twenty two witnesses and exhibited thirty four documents to prove its case. In the statement recorded u/s 313 Cr.P.C., accused stated it to be a case of false implication and claimed trial. In defence, three witnesses were examined and six documents were exhibited. The trial court acquitted all the accused giving benefit of doubt. Hence, the present appeal.

This appeal was filed against remaining twelve accused and during pendency of the appeal, Akhil Kumar and Mohan Lal died and appeal was abated qua them. The appeal survives against the remaining ten accused.

Learned Public Prosecutor contends that the deceased in the dying declaration had narrated the incident and the statements of witnesses supported the case of the prosecution that fatal injuries were inflicted to the deceased by the accused. It is argued that PW-15 Sonu Devi (wife of the deceased) testified that on her visit to the hospital on 24.11.1985, the deceased informed her that Jagan stabbed him. The contention is that trial court erred in acquitting the accused.

Learned counsel for the accused submits that the dying declaration was unreliable, there were discrepancies and no fitness certificate was taken from the Doctor before recording the dying declaration. It is argued that neither the date nor the time was specified on the endorsement of fitness on letter Ex.P.13. Further that there was no endorsement by the Doctor on the statement recorded. It is contended that before recording of dying declaration, the deceased was in touch with almost fifty persons and could have been tutored.

Heard learned counsel for the parties and perused the record with their able assistance.

The criminal machinery was set into motion on recording of statement of the deceased in the hospital on 24.11.1985. On the same day, the statement u/s 161 Cr.P.C. and the dying declaration were recorded.

As per the statement of the deceased, the accused had inflicted injuries with lathis, barchas and knives. In the statement, the deceased named almost dozen of persons but stated that forty to fifty persons came in two jeeps and attacked him due to previous enmity.

As per the case set up PW-5 Girdhari chakkiwala and PW-21 Jawahar Singh Paldi were on the spot and stepped in to save the deceased from the accused. In the statement u/s 161 Cr.P.C., the deceased claimed that Mahendra Singh and Shri Ram who were at his house were eye witnesses to the incident. Both PW-5 Girdhari chakkiwala and PW-21 Jawahar Singh Paldi were declared hostile and Mahendra Singh was not examined by the prosecution. PW-19 Shri Ram (nephew of Mahendra Singh) who had also intervened to save the deceased from the accused was declared hostile.

The three star witnesses failed to support the case of the prosecution. So far as the reliance on the dying declaration is concerned, there cannot be dispute on the proposition of law that dying declaration can be solely relied upon by the prosecution provided it is reliable but in other cases the dying declaration must be corroborated by other evidence.

The Supreme Court in the case of Irfan @Naka Vs. The State of Uttar Pradesh reported in (2023) INSC 758 held as under:-

“62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility: -

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? “Rule of First Opportunity”

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

(vii) Whether, the dying declaration has been consistent throughout?

(viii) Whether, the dying declaration in itself is a manifestation / fiction of the dying person’s imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.

It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion. The reason why we say so is that in the case on hand, although the appellant-convict has been named in the two dying declarations as a person who set the room on fire yet the surrounding circumstances render such statement of the declarants very doubtful.”

PW-6 Prithvi Raj Sharma (Judicial Magistrate) stated that there were fifty to sixty persons around the deceased when the statement was recorded. It was worth noting that no independent witness joined for recording of the statement and also that the deceased was in contact with large number of persons does not rule out the possibility of the deceased being tutored before recording of the statement.

The prosecution albeit, examined Prithvi Raj Sharma (Judicial Magistrate) PW-6, Dr. Vijay Kumar PW-1, ASI Rudmal Singh PW-7 but failed to prove that the deceased was medically fit for recording of the statement. The dying declaration was not endorsed by the doctor, no certificate of the fitness was issued. The endorsement of fitness by a doctor on the Letter Ex.P.3 bears neither the date nor time. The dying declaration was not recorded in question/ answer format.

On 24.11.1985 parchabayan Ex.P.10, dying declaration Ex.P.9 and statement u/s 161 Cr.P.C. Ex.P.19 of the deceased were recorded. There are variations in all the three statements. In dying declaration, the deceased stated that he was attacked by ten persons then he said about fifty-sixty persons and in the same breath stated that there were forty persons. Not only this the deceased at the first instance stated that accused were his relatives and later said that accused were not related to him. In Ex.P.9 dying declaration, deceased had not named Madan Singh, Harphool Singh, Omprakash, Murlidhar. Further in Ex.P.9, Ex.P.10 and Ex.P.11 deceased did not name Ashok, Akhil, Radheshyam and Mahipal. In the three statements, deceased named different accused. The dying declaration was neither corroborated by the eye witnesses nor by any other independent witness and it proved fatal to the case of prosecution.

No sharp edged weapon alleged to have been used in the offence was recovered. The recovery of two lathis is doubtful as the recovery witnesses PW-9 Phool Chand and PW-10 Birbal turned hostile. No blood stains were found on the lathis, thereby not connecting them with the incident.

As per the Post Mortem Report (‘PMR’), cause of death was shock due to intra abdominal hemorrhage due to injury of the blood vessels supplying blood to the stomach and spleen and multiple fractures in the externities. The deceased had not attributed specific role to any of the accused in the dying declaration and in the statement recorded u/s 161 Cr.P.C.

Jawahar Singh @ Banwari was examined as PW-13 by the prosecution who stated to have witnessed the incident and claimed to identify Rajendra among the accused who inflicted injuries. This witness had not recognized any other accused and after death of Rajendra during trial, the statement of the witness is not enhancing the case of the prosecution for other accused.

PW-15 Sonu Devi (wife of the deceased) deposed before the Court that on her visit to the hospital the deceased told her that he was stabbed by Jagan but she was not found reliable witness by the trial court. She was at home when her husband was brutally injured and instead of taking care of him by going to the hospital, she kept sleeping at home. It would be relevant to note that dying declaration was recorded at 6:00 AM on 24.11.1985. The deceased was admitted in the hospital after the incident in the intervening night on 23/24.11.985. It was not proved that the condition of the deceased at the time of visit of PW-15 to the hospital was stable enough to make revelation.

The deceased made three statements on 24.11.1985 itself however, no specific role was attributed by the deceased to Jagan in any of these statements. No Test Identification Parade was carried out to prove that the accused were the persons present on the spot and they inflicted injuries.

The scope of interference in the appeal against acquittal is well-stated and reference in this regard is made to the decision of Supreme Court in the case of Babu Sahebagouda Rudragoudar Vs. State of Karnataka reported in [(2024) 8 SCC 149] held:-

“40. Further, in H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 Cr.PC as follows:

“8. xxx xxx xxx

8.1.The acquittal of the accused further strengthens the presumption of innocence;

8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

8.3.The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and

8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

41.1. That the judgment of acquittal suffers from patent perversity;

41.2. That the same is based on a misreading/omission to consider material evidence on record; and

41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

In view of the above discussion, the detailed and well reasoned impugned judgment of acquittal passed after appreciating the evidence and considering the facts suffers from no factual or legal error much less perversity calling for interference by this Court.

The view taken by the trial Court is plausible specially that main witnesses of the prosecution turned hostile and failed to support the case of the prosecution. The dying declaration had variations and remained uncorroborated.

The appeal is dismissed.