Shrawan S/o Prahlad vs State of M.P.

This appeal has been filed by the accused-appellant being aggrieved by the judgment dated 6.9.2006, passed by Special Judge, Betul, in

Special Case No.97/2005, whereby the appellant has been convicted for offence punishable under Section 302 of the Indian Penal Code and

sentenced to undergo RI for life.

In brief the prosecution case is that on 22.4.2005 at village Asari, Police Station Chicholi. Suggabai (since deceased) was alone in her house.

Her niece Jyoti (PW1) was playing with the children of Suggabai outside of the house. They saw the appellant came to the house of Suggabai and

caused fatal blows to her by means of knife. To save herself, Suggabai ran away towards the neighbour''s house. She sustained several injuries. On

the information of the incident, police came to the residence of Duklu Aadiwasi (neighbour of deceased). On the oral report of Suggabai, Dehati

Nalishi (Ex.P7) lodged against the appellant under Sections 449 and 307 of IPC and section 3(1)(II) and 3 (2) (V) of SC/ST (Prevention of

Atrocities) Act, 1989. Suggabai was brought to the hospital for treatment. Her statements under Section 161 of Cr.P.C and dying declarations

under Section 32 of IPC have been recorded by the Competent Authorities. She died on 24.4.2005. Hence merg intimation was registered on the

report of Ward Boy Surenderlal. The offence was converted into Section 302 of IPC. After due investigation, charge sheet has been filed before

the concerned Court.

After committal of the case, trial was conducted by the trial Court. Charges have been framed under Section 449 302 and 354 of IPC read with

Section 3 (2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 against the appellant. The appellant abjured guilt and pleaded that he has been

falsely implicated due to old enmity with the deceased. After considering the entire prosecution evidence, learned trial Court held the appellant

guilty for committing the murder of deceased-Suggabai. He has been convicted for offence under Section 302 of IPC and sentenced him to life

imprisonment.

The above findings and sentence have been challenged by the appellant on the grounds that the learned trial Court has wrongly relied on the

evidence of Child witnesses Ku. Jyoti (PW1) and Ritesh (PW2), infact they are not the eye witnesses. The police registered a false criminal case

against the appellant and he has wrongly been convicted by the learned trial court. Since the dying declarations of the deceased were not reliable,

the findings of the learned trial Court are illegal, erroneous and contrary to the evidence, hence deserve to be set aside.

Learned Govt. Advocate has vehemently opposed the submissions of the appellant and contended that the learned trial Court has rightly held

the appellant guilty for committing the aforesaid offences.

We have heard learned counsel for the parties at length and perused the record.

The point for consideration is that - whether the appellant has wrongly been convicted under Section 302 of IPC ?

The case is mainly based on various dying declarations of the deceased. The first dying declaration Dehati Nalishi (Ex.P7) registered by Sub.

Inspector D.P. Mahore (PW12) is considered as dying declaration. He deposed that at the time of lodging of Dehati Nalisi by him, Suggabai was

mentally conscious and capable of giving the statement. Dehati Nalisi is registered by him as per the statement given by Suggabai. In the

crossexamination, his testimony is found unrebutted. In Dehati Nalishi (Ex.P7), Suggabai has clearly stated that the appellant came to her house at

about 2.20 pm on the day of incident. She did not like him, hence she objected on which the appellant threw her on the cot. When she opposed,

the appellant inflicted several blows by knife on her back and abdomen. He also threatened Suggabai to kill her. She somehow reached the house

of Duklu Adiwasi. She had narrated the whole incident to Duklu and her wife Mesobai. Such statement is also covered under Section 32 of Indian

Evidence Act.

It is true that Duklu (PW7) and his wife Mesobai (PW6) both turned hostile. But Mesobai (PW6) partly supported the prosecution story that, in

afternoon Suggabai came to her house. She was in injured condition and was crying. Her son Ritesh and Jyoti also came with her. In para 4, she

admitted that at that time Duklu (PW7) was present there. She further admitted that in presence of Mesobai (PW6), Suggabai has narrated the

whole incident to Duklu and told that appellant has inflicted several blows of knife on her.

Mesobai (PW6) in para 6 has deposed that on the telephonic message to the police station, police came to the scene of occurrence and took

injured Suggabai with them. D.P. Mahore (PW12), Sub-Inspector also corroborates the testimony and establishes that dying declaration (Delhati

Nalisi Ex.P7) of the deceased was recorded according to the statement given by Suggabai. S.I. R.D. Pal (PW5) establishes that in his presence

Dehalti Nalishi (Ex.P7) was signed by Suggabai, at that time he saw the injuries over the abdomen of Suggabai. Report (Ex.P8) was registered by

him as per Dehati Nalishi (Ex.P7).

Dr. Rajendra Mousiq (PW10) deposed that he examined Suggabai at CHC, Chicholi on 22.4.2005 and found stab wounds over her

abdomen. She was in a critical condition. Hence he referred her to the District Hospital, Betul. Dr. N.D. Chourasia (PW3) admitted and treated

her at about 3.40 pm at the District Hospital, Betul. Her bed head ticket (Ex.P1) also corroborates the testimony of Dr. Chourasia and the

prosecution story.

Head Constable Surendra Verma (PW11) has deposed that on 22.4.2005, he received a Tehrir (letter) (Ex.P5) from CHC Chicholi for

recording dying declaration of Suggabai, hence he sent a requisition to SDM, Betual for recording the dying declaration of Suggabai. Later dying

declaration of Suggabai was recorded by the Tehsildar Shri B.L. Saxena (PW15). On the same date of the incident, statement of deceased

Suggabai (Ex.P32) under Section 161 of Cr.P.C was recorded by Dy. S.P., B.S. Patel, (PW14). This was the last statement of the deceased

Suggabai, hence can be treated as dying declaration under Section 32 of the Evidence Act. Both the witnesses have deposed that statement of

Suggabai were duly recorded by them as narrated by her. According to the above witnesses, at the time of recording both dying declaration and

statement (deemed as dying declaration) Suggabai was conscious and mentally fit to give the statement. Both the dying declarations (Ex.P32) and

(Ex.P6) were recorded by investigating Officer, B.S. Patel (PW14) and Naib Tehsildar (PW15) have corroborative value. We do not find any

contradiction and omission in the said dying declarations, hence are found reliable.

Dr. Rajendra Mousiq (PW10) in his cross-examination has deposed that on 22.4.2005 at about 3.00 pm he also recorded the dying

declaration of Suggabai. According to him, Suggabai has stated that due to old enmity, the appellant caused knife injuries on her abdomen and her

back side. Doctor has also stated that at that time she was capable to give the statement which was recorded as Ex.P34.

Narrations of all the dying declarations were duly supported by the eye witnesses. Jyoti (PW1) niece of deceased, Ritesh (PW2) son of

deceased both aged about 12-13 years but are competent to understand the happenings, which happened before them. Learned counsel for the

appellant has stated that the testimonies of child witnesses Ku. Jyoti and Ritesh cannot be accepted without corroboration of any independent

witness. But we are not inclined to accept this contention because in the present case they were present at the house of the deceased. The incident

also took place at their house and it was possible for them to see all the incidents happened in the house or out of the house. Their presence with

Suggabai also corroborated by Mesobai.

In the case of Raju @ Devendra Choubey Vs. State of Chhatisgarh (AIR 2014 SC 3741), Hon''ble Supreme Court has held that if the

incident occurred in a house, presence of child witness in the house is natural. He has no ulterior motive in identifying the accused. Similarly in the

case of Dattu Ramrao Sakhare Vs. State of Maharashtra [(1997) 5 SCC 341], Hon''ble Supreme Court has held as under :-

A child witness if found competent to depose to the facts and reliable on such evidence could be the basis of conviction. In other words even in

the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to

understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the

circumferences of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the

witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.

[See also Ranjeet Kumar Ram @ Ranjeet Kumar Das Vs. State of Bihar [ 2015 SCC Online SC 500], State of Rajasthan Vs. Chandgi Ram

and Ors. [ (2014) 14 SCC 596] We do not find the testimony of child witnesses in the present case unreliable. They also corroborate the dying

declarations.

Learned Counsel for the appellant has stated that the conviction cannot be based on the dying declaration of the deceased, but the dying

declaration is a substantive piece of evidence, it may be the sole basis of conviction if found reliable as also held in the case of Ramesh and others

vs. State of Haryana 2017 Cri.L.J. 352.

Learned counsel for the appellant has submitted that the prosecution case is not corroborated by the neighbours of the deceased. Earlier we

considered the testimony of Mesobai (PW6) and found she partly supported the prosecution story, hence, that part of her evidence can be relied

upon for corroboration. In case of Ramesh and others Vs. State of Haryana 2017 Cri.L.J. 352, the Supreme Court has also held that trend of

witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure

of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. The

following reasons can be discerned which make witnesses retracting their statements before the Court and turning hostile:-

(i) Threat/intimidation.

(ii) Inducement by various means.

(iii) Use of muscle and money power by the accused.

(iv) Use of Stock Witnesses.

(v) Protracted Trials.

(vi) Hassles faced by the witnesses during investigation and trial.

(vii) Non-existence of any clear-cut legislation to check hostility of witness.

Hence, it may be the reason that due to feeling of neighbourship or fear of the appellant, Mesobai (PW6) and her husband Duklu (PW7) turned

hostile even then. The prosecution story is duly corroborated by other evidence, hence cannot be disbelieved.

In case of Ramesh Vithal Patil Vs. State of Karnataka (2014) 11 SCC 516 and in the case of Sadhu Sharan Singh Vs. State of UP and Ors.

[2016 (4) SCC 358] it was held that

in present days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence - Unless it is

inevitable, people normally keep away from court, as they find it distressing and stressful - Though such kind of human behaviour is indeed

unfortunate, but it is a normal phenomena - Such handicap of investigating agency cannot be ignored in discharging their duty. Prosecution case

cannot be doubted on such ground alone - Entire case cannot be derailed on mere ground of absence of independent witness as long as evidence

of eyewitness, though interested, is trustworthy.

[See also Appabahi and Anr. Vs. State of Gujrat AIR 1988 SC 696].

Dr. N.D. Chourasia (PW3) conducted the autopsy of the deceased and found following injuries on her body :-

An incised wound 5x1x peritoneum deep at the abdomen.

An incised wound 4x1cmx into abdominal cavity.

An incised wound 5x1x7 cm over mid side of abdomen.

An incised wound 10x1x1 cm over left side of abdomen.

An incised wound 2x1x2 cm on lower back side.

An incised wound 2x1x5 cm left side lower back.

An incised wound 4x1/2 cm skin deep left side of chest.

Doctor found a large incised wound which was treated during operation to save the life of the deceased. A rubber tube was inserted in the

abdomen of the deceased.

All the above injuries and the incised wounds were caused by sharp object. They were fatal in nature and sufficient to cause death of the

deceased. All the injuries were ante-mortem in nature. In the opinion of Dr. N.D. Chourasia (PW3), Suggabai died due to shock and excessive

bleeding. Thus, postmortem report (Ex.P3), was duly proved by him which establish the ocular evidence is duly corroborated by medical

evidence.

A knife was seized by S.I, B.S. Patel (PW14) from the possession of the appellant. According to his memorandum (Ex.P21), seizure memo

(Ex.P22) was prepared by B.S. Patel. A blood stained Khaki Pant and T. Shirt of the appellant have been seized by the police by seizure memo

(Ex.P23). Seized knife was sent for query to Dr. N.D. Chourasia (PW3), who has opined that the injuries found on the body of the deceased

might have caused by the aforesaid knife. Query report is Ex.P4. All the seized articles marked as I.J. and K. sent for chemical examination. In the

FSL report (Ex.P27), human blood has been found on the knife and clothes of the appellant. The appellant failed to explain the origin of human

blood stains on his clothes and the knife recovered from him. Hence, adverse inference can easily be drawn against him that such knife was used

by him to inflict blows on the deceased. Human blood stains were found on clothes, which he was wearing at the time of incident.

During the incident, the appellant himself sustained two abrasions as found by Dr.O.P. Yadav (PW9) on the right palm and right little finger.

The above injuries show that while inflicting blows of knife to the deceased-Suggabai, when she resisted, such simple injuries were sustained to the

appellant, which proves involvement with the crime.

After considering all the facts and circumferences, the evidence on record, we are of the opinion that, there is no ground or merit to interfere in

the findings of learned trial Court. The learned trial Court has rightly convicted the appellant for committing murder of the deceased. The number of

injuries, nature of injuries, place of injuries, used weapon and act of the appellant are the facts clearly establish the intention of the appellant, to

cause the death of the deceased.

In view of the foregoing and in light of the principles laid down by the Hon''ble Supreme Court, we find that there is no case to interfere in the

findings of the learned trial Court. This appeal against the conviction of the appellant, deserves to be dismissed. Hence, it is dismissed.

Copy of this judgment be sent to the trial Court for information and compliance alongwith the record immediately.