Shyam @ Shyambabu vs State of M.P.

S.S. Dwivedi, J.

The appellant has preferred this appeal u/s 374 (2) of Cr. P.C. feeling aggrieved by the impugned judgment of conviction and sentence dated 26th July, 1994 passed by Fourth AS J, Morena in ST No. 91 of 1993 wherein, the appellant accused has been found guilty u/s 302 of IPC and sentenced to the imprisonment for life.

Admitted facts of the case are that deceased Prayag Narayan was the father of the present appellant who died due to gun shot injury.

Briefly stated, the facts of the case are that deceased Parayag Narayan is the father of the appellant. Mother of the present appellant died before 20 years and thereafter, deceased Prayag Narayan used to live with another lady namely Sheela Bai and developed marital relations with aforesaid Sheela Bai. Thereafter, some dispute arose between present appellant with deceased Prayag Narayan with regard to partition of the property belonging to Prayag Narayan the house and other articles. On the fateful day of the incident i.e. On 20.12.1992, some quarrel again took place between appellant and deceased Prayag Narayan at the time, appellant-accused had fired by a mouser gun on the deceased Prayag Narayan by which, Prayag Narayan sustained gun shot injury on his left buttock. He was immediately taken up to the hospital and one Pooran had lodged FIR at Kotwali, Morena at 9.40 AM on which basis, police registered a case U/s 307 of IPC and the Sub Inspector S.C. Sharma reached to the hospital and gave a memo to the doctor concerned for recording of the dying declaration of the injured Prayag Narayan Concerning trreating doctor Shri VN. Chaubey (PW13) at 9.30 AM examined injured Prayag Narayan and found a gun shot injury on the left buttock due to which, Criminal his intensine came out from the abdomen and blood was oozing from the injury. Immediately, necessary treatment was given and the concerning doctor Shri VN. Chaubey (PW13) had also recorded dying declaration of injured Prayag Narayan which is Ex.P/19, wherein, the deceased Prayag Narayan specifically stated that it is the appellant-accused Shyamu alias Shyambabu who caused aforesaid injury to him by means of a gun. During treatment, injured Prayag Narayan died for which, necessary information was sent to the police station and the police converted the case U/s 302 of IPC, prepared inquest panchnama and also issuedmemo for the postmortem examination. Dr. VN. Chaubey (PW13) also performed Postmortem and opined that deceased died due to the gun shot injury which resulted into hemorrhage and syncope and due to shock deceased Prayag Narayan died.

During investigation, police officer prepared the spot map, recorded statements of witnesses, arrested appellant-accused, seized a mouser gun from his possession and after due investigation, charge sheet had been filed.

The appellant-accused abjured the guilt and his defence is of false implication in this case.

Learned trial court after due appreciation of entire prosecution evidence on record by the impugned judgment dated 26.7.1994, held the appellant-accused guilty for the offence punishable u/s 302 of IPC and sentenced him as stated herein above. Feeling aggrieved by this, the appellant has preferred this appeal.

Having heard learned counsel for the appellants as well as learned Panel Lawyer for the State.

It is submitted by learned counsel for the appellant that the material eye witnesses namely Kok Singh (PW2), Ramnath (PW3), Pooran (PW4) and Shashi Sharma (PW6) had not supported prosecution story that it is appellant-accused who caused gun shot injury to deceased and therefore, all these witnesses had been declared hostile by the prosecution. Learned trial court only held appellant-accused guilty U/s 302 of IPC on the basis of the dying declaration Ex.P/19 alleged to be recorded by the medical witness Dr. VN. Chaubey (PW13) and in that statement also, deceased Prayag Narayan had also not clarified as to who is the person caused the aforesaid injury. Sheela Bai alleged kept of the deceased Prayag Narayan, was also having a son whose name is also Shyamu, therefore, the prosecution has not clarified as to whether, the present appellant had caused aforesaid injury or the another son of Sheela Bai had caused aforesaid injury and in view of that, learned trial court has wrongly believed the dying declaration of deceased Prayag Narayag and wrongly held appellant-accused guilty for the offence concerned. Hence, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court and also prayed for the acquittal of the appellant-accused.

In reply, learned Panel Lawyer for the state supported the impugned judgment and submitted that doctor VN. Chaubey (PW13) has clearly proved the dying declaration of deceased Prayag Narayan which is Ex.P/19, wherein, the deceased Prayag Narayan had specifically stated that it is appellant-accused who had the dispute about partition of the property and due to this quarrel, the appellant-accused had caused injury to him by means of a gun and the learned trial court has rightly believed the aforesaid dying declaration Ex. P/19 and if the dying declaration is believable in that case, no further corroboration is required for the conclusion of the conviction of the appellant and thus, no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court. Hence, prayed for dismissal of the appeal.

To bring home the charge as leveled against the appellant, it is no where in dispute that deceased Prayag Narayan is the father of present appellant who died due to gun shot injury and his death is also proved by medical witness Dr. V.N. Chaubey (PW13) who on postmortem examination opined that deceased Prayag Narayan died due to gun shot injury which resulted into severe hoemorrhage, syncope and shock which is ultimate cause of his death. Duration of the death is within 24 hours from the postmortem examination and he also proved Postmortem report Ex. P/18. This report has also not been controverted to by the defence.

Similarly, the death of deceased Prayag Narayan has also been proved by Ramesh Chand Sharma (PW1), Kok Singh (PW2), Ramnath (PW3), Pooran (PW4), Girraj Sharma (PW5) and Shashi Sharma (PW6). They specifically stated that in this incident, Prayag Narayan died due to gun shot injury and this statement of aforesaid witnesses has also not been confronted to by the defence with regard to the death of deceased Prayag Narayan in this incident.

Now, the main question arises as to whether, it is appellant-accused who had caused a foresaid fire arm injury to deceased Prayag Narayan. Admittedly, the alleged eye witnesses Pooran (PW4) who had also lodged FIR Ex. P/9 has not supported the prosecution story and had not stated before the trial court that it is appellant accused who had accused aforesaid fire arm injury to deceased Prayag Narayan. This witness has been declared hostile by the prosecution. Similarly, Shashi Sharma (PW6) wife of the present appellant naturally had also, not supported the prosecution story against appellant/her husband and she had also been declared hostile by the prosecution.

Now, the prosecution, rests upon the dying declaration Ex. P/19 recorded by the medical witness Dr. V.N.Chaubey (PW13) in the question answer form and Dr. V.N. Chaubey (PW13) had categorically stated that at the time recording of the statement Ex.P/19, injured Prayag Narayan was in a position to give statement and he specifically sated that it is his son Shyamu who had caused aforesaid fire arm injury on his left buttock. On perusal of Ex. P/19 it is also clear that before recording of the aforesaid statement, doctor has specifically stated that injured Prayag Narayan is in a lit condition to give statement and this statement has been recorded within 10 minutes and during the course of recording of statement, injured Prayag Narayan was in a fit condition during recording of the statement also. The learned trial Court has elaborately discussed that the concerning Dr. VN. Chaubey has no ulterior motive to record false statement of deceased Prayag Narayan as per Ex. P/19. He has no grudge against accused. He is government doctor posted at Morena and has specifically stated in the report Ex. P/19 and thus, the trial court has believed the statement of Dr. Chaubey that deceased has given aforesaid statement wherein he specifically stated about the fact that the apellant-accused has caused aforesaid gun shot injury to him.

Learned counsel for the appellant stressed upon the fact that if the doctor has not certified state of mind of injured Prayag Narayan before recording of the dying declaration, in such case, the dying declaration solely cannot be believed and on this point, counsel for the appellant placed reliance on the decision of the apex Court reported in Ramilaben Hasmukhbhai Khristi and Another, Suleman Yakubbhai Khristi Parmar and Dahyabhai Ashabhai Khristi Parmar and Others Vs. State of Gujarat, , Panchdev Singh Vs. State of Bihar, and Chacko Vs. State of Kerala, wherein the Hon. Apex Court had disbelieved the dying declaration of the injured concerned. In view of the facts of the aforesaid cases which are quite different from the present case. In the present case, the appellant-accused is the son of deceased who fired on his father and deceased Prayag Narayan has also no grudge against appellant to tell lie against him at the time of his death bed and as discussed herein above, concerning Dr. VN. Chaubey has also not having any ulterior motive with the appellant-accused for stating wrong facts against appellant. In such circumstances, the aforesaid cases relied by the appellant are not applicable to the facts of the present case.

In a recent decision of the Apex Court reported in Vikas and Others Vs. State of Maharashtra, the Hon. Apex Court after discussing entire law on the dying declaration has laid down here as under;

The court, referring to earlier case law, summed up principles governing dying declaration as under: (Paniben case, SCC pp. 480-81 para 18).

18 (i). There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration;

(ii) If the court is satisfied that the dying declaration is true and voluntary is can base conviction on it, without corroboration;

(iii) This Court has to scrutinize the dying declaration are fully 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;

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence;

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected, (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction;

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth;

(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks upon to the medical opinion. But where the eyewitness had said that the deceased was in a fit and conscious State to make this dying declaration, the medical opinion cannot prevail;

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

In P.V. Radhakrishna Vs. Sate of Karnataka, this court considered doctrine of dying declaration indicated in legal maxim nemo moriturus praesumitur mentire (a man will not meet his Maker with a lie in his mouth), and stated : (SCC p. 449, para 12); 12. 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 in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was sin a fit state of mind after a clear opportunity to observe and identify the assailant. 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".

(See also Babulal Vs. State of M.P. and Muthu Kutty Vs. State).

Applying the above principles to the fact of the case, in our judgment, both the courts were wholly right and fully justified in relying upon two dying declarations recorded by (i) PW 5 Ramchandra, Special Judicial Magistrate on 17.05.2001 (Ex. 56) and (ii) PW 7 PSI Kale on 18.05.2001 (Ext. 62) and in discarding evidence of PW 1 Laxman, father of victim Rekha and PW 2 Manohar, panch. The courts were also right in observing that for some unknown reasons PW1 Laxman, father of victim Rekha was supporting the defence. The prosecution, however, was successful in brining before the Court PW 5 Ramchandra, Special Judicial Magistrate and PW 7 PSI Kale who recorded dying declarations of deceased Rekha. Both the witnesses were rightly believed by the courts below. We, therefore, see no ground to interfere with the order of conviction and sentence recorded by the trial Court and confirmed by the High Court. The appeal, therefore, deserves to be dismissed.

In view of the aforesaid law laid down by the Apex Court and looking to the facts and circumstances of the case, we are of the considered opinion that learned trial court has rightly believed the dying declaration Ex. P/19 supported by the statement of Dr. V.N. Chaubey (PW13). Approach of learned court below does not appears to be illegal in believing the aforesaid dying declaration.

Learned counsel for the appellant tried to create doubt about the name of appellant-accused. As stated herein above that Sheela Bai is also having a son named Shyamu and therefore, it is not clear as to which person had caused aforesaid injury to the deceased. But in the statement of deceased i.e., Dying declaration Ex. P/19, it is clearly stated that appellant-accused has caused aforesaid injury due to dispute over partition of property with Prayag Narayan and it is nowhere stated by any of the witness that another son of Sheela Bai was also having some dispute with regard to the property with deceased Prayag Narayan. Hence, the attempt to create doubt about identity of the accused in the dying declaration appears to be futile and therefore, appellant-accused cannot get any benefit by this contention.

In view of the aforesaid discussion, we are of the considered opinion that learned trial court has rightly believed the dying declaration Ex. P/19, wherein, deceased Prayag Narayan had specifically stated that it was appellant-accused who caused aforesaid injury to him which ultimately resulted into his death and it is also apparent that aforesaid injury has been caused by the accused by means of fire arm which clearly shows his intention of causing death of Prayag Narayan. Therefore, act of appellant-accused clearly fall within the purview of section 300 of IPC and thus, offence U/s 302 of IPC has rightly been found to be proved against appellant.

Thus, we are of the considered opinion that the trial court rightly held the appellant-accused guilty U/s 302 of IPC and no grounds are available for any interference in the aforesaid impugned judgment of conviction and sentence passed by the trial Court.

Resultantly, the appeal being devoid of any merit is dismissed accordingly.