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Judgment
(1) Accused-appellant Manmurat calls in question the legality and correctness of the judgment and order dated 28.10.2005 delivered by the Sessions Judge, Sidhi in Sessions Trial No.80/2005, whereby and whereunder he has been convicted under Section 302 of the IPC and sentenced to suffer life imprisonment and to pay a fine of Rs.500/- (Five Hundred only) in default of which to further undergo simple imprisonment for a period of three months.
(2) The following are the admitted and undisputed facts of the case :-
(2.1) Accused Manmurat is a distant nephew of deceased Ramsiya by relation. (2.2) Raniya (PW/1) is the wife and Manu (PW/2) and Jagyasen (PW/9) are the nephews of deceased Ramsiya. (2.3) Accused Manmurat, deceased Ramsiya and other main prosecution witnesses are the residents of village Paraitola, the place of occurrence. (2.4) Deceased Ramsiya died before the noon time on 09.04.2005 in his house. (3) The prosecution case as unfolded in the course of trial of the case, in brief, is as under:-
(3.1) On 09.04.2005 at about 4:00 PM, complainant Jagyasen (PW/9) lodged an oral First Information Report at Police Station Chitrangi of District Sidhi stating that in the late evening of 08.04.2005, deceased Ramsiya had gone from his house to buy grocery items from a shop in his village Paraitola. He did not return even after late night. His wife Raniya went to sleep after a long wait. In 2:30 hours of the night, accused Manmurat came to her house and told her that an unknown person had assaulted Ramsiya badly and he is lying in the injured condition nearby the village river named Bichhiya. Thereafter, Raniya, accused Manmurat and he went to that place and brought him by lifting him. They lay him down in the Aangan (court yard) of his house. Later, he told Raniya to fetch reputed persons of the village. Thereupon, she called Bharat Singh, Suddhu Singh, Randhir Singh (they are not examined) and Sahablal (PW/4). In their presence, he told that in the night, accused Manmurat inflicted injuries to him with tangi and arrows. He also told them that he would not be alive because of his injuries. At about 12:00 a.m., he died. The complainant has also stated that 5 to 6 days prior to the present incident, accused Manmurat had quarreled with deceased Ramsiya by saying that he had instigated his wife to desert him. At that time, accused Manmurat threatened him to kill. For this reason, accused Manmurat inflicted injuries to deceased Ramsiya. Sub-Inspector, S.P. Pandey (PW/10), the SHO of said Police Station, reduced the oral FIR made by complainant Jagyasen into writing being Ex.P-11 and registered a case at Crime No.35/2005 against accused Manmurat under Section 302 IPC. (3.2) S.P. Pandey (PW/10) carried out the investigation in the case. In the course of which, he prepared an inquest report Ex.P-3, drew spot map Ex.P-5, collected samples of blood stained soil and simple soil vide memo Ex.P-4, sent the dead body of deceased Ramsiya for post-mortem examination, on the basis of the disclosure statement Ex.P-7 of accused Manmurat, he seized his blood-stained one half-pants, one bow and one arrow from his house vide seizure memo Ex.P-8, recorded the case diary statements of the witnesses and also sent the seized articles for forensic examinations to the Forensic Science Laboratory, Sagar, which has sent report Ex.P-18. (3.3) Dr. R.G. Kotiya (PW/9) performed autopsy on the dead body of deceased Ramsiya and gave a post-mortem report Ex.P-9 in which he has stated that deceased Ramsiya had died of excessive bleeding from the anti-mortem injuries which he suffered, and the injuries were sufficient to cause his death in the ordinary course of nature. (3.4) Upon conclusion of the investigation, the police filed a charge-sheet against accused Manmurat for being prosecuted under Section 302 IPC.
(4) The learned Sessions Judge framed the charge against accused Manmurat under Section 302 IPC. He denied the guilt and prayed for trial. In the examination under Section 313 of the Cr.P.C., he denied all the incriminating evidence and circumstances appearing against him in the prosecution evidence except the admitted facts. He stated in his defence that in the fateful night he was returning to his house after selling fuel-woods. While passing by the river-side, he heard cries of deceased Ramsiya, who was writhing in pain due to injuries and asking for water. He brought him to his house with others. He also stated in his defence that deceased Ramsiya used to quarrel with fellow villagers under the influence of liquor and that he has been falsely implicated in the case due to enmity. However, he did not adduce any evidence in his defence.
(5) The learned Sessions Judge, having analyzed and appreciated evidence on record, has held accused Manmurat guilty of having committed murder of deceased Ramsiya. Upon the said finding, he convicted him for the offence punishable under Section 302 IPC and sentenced thereunder as noted in para 1 of this judgment.
(6) Being aggrieved by and dissatisfied with the judgment, accused Manmurat has filed this appeal under Section 374(2) of the Cr.P.C.
(7) Learned counsel for accused Manmurat submitted that the learned Sessions Judge has convicted accused Manmurat on the evidence of Tejbali Singh (PW/3) and Sahablal (PW/4) who have deposed that deceased Ramsiya had given the alleged oral dying declaration in their presence and the report of FSL Ex.P-18 stating that the blood stains found on the half-pants of accused Manmurat was of human blood. He further submitted that it is not mentioned in the F.I.R. that when deceased Ramsiya made the alleged oral dying declaration Tejbali Singh was present, and that he has admitted in para 7 of his cross-examination that the police had not recorded his case diary statement and the police had only obtained his signatures on Safina Form Ex.P-2, seizure memo Ex.P-5 and site plan Ex.P-5. Hence his evidence is wholly unreliable. He further submitted that Sahablal (PW/4) has admitted in paras 8 and 9 of his cross-examination that the police had not recorded his case diary statement and that while making the alleged oral dying declaration deceased Ramsiya was not fully in a state of consciousness and he intermittently passed into a state of unconsciousness. Hence deceased Ramsiya had not made the alleged oral dying declaration in the fit state of mind. He further submitted that as per the FIR and the evidence of Raniya and Manu, accused Manmurat and the aforesaid witnesses brought deceased Ramsiya to his house by lifting him in an injured condition. In the circumstance, the drops of blood oozing out of the injuries of deceased Ramsiya had fallen on his wearing half-pants, therefore, the finding of human blood on his half-pants cannot be used as supportive evidence. Thus, the learned Sessions Judge has recorded the finding of guilt of accused Manmurat on erroneous appreciation of evidence. Upon these submissions, he prayed that the impugned judgment is bad in law annd is liable to be set aside.
(8) Learned Government Advocate has justified the impugned judgment in the course of arguments.
(9) We have carefully considered rival submissions made across the Bar and perused the impugned judgment and evidence on record.
(10) First point for our consideration is whether deceased Ramsiya had suffered a homicidal death?
(11) To decide the point, evidence of Dr. R.G. Kotiya (PW/8) is important. He has stated in his evidence that on 10.04.2005 he conducted the post-mortem examination on the dead body of deceased Ramsiya at the Community Health Centre, Chitrangi. Upon the external examination of his dead body, he found two incised injuries on his left leg. One injury was on the ankle joint, the size of which was 2 inch x1? inch and another injury was below his knee which was almost of the same size. He has also found one abrasion over left hand forearm of size 3 inch x 2 inch. He has also stated that these three injuries were 30 hours old and anti-mortem in nature. Both the incised injuries were caused by a hard and sharp object and they were sufficient to cause his death in the ordinary course of nature. He opined that deceased Ramsiya died of haemorrhagic shock resulted from the excessive bleeding from these two incised injuries, though they were on non-vital parts of his body. He has also deposed that he has not found any internal injury in his body. However, the smell of liquor was coming out of his mouth and alimentary canal. He has also proved post- mortem report Ex.(P/9). Upon a perusal of his short cross- examination, we find that there is nothing to disbelieve his evidence. We, therefore, hold that deceased Ramsiya died of a homicidal death.
(12) Upon the perusal of the impugned judgment, we find that the learned Sessions Judge has believed the evidence of Raniya (PW/1) and Manu (PW/2), who are the wife and the nephew of deceased Ramsiya respectively, to the extent that they and accused Manmurat had brought deceased Ramsiya by lifting him in an injured condition to his house from a place nearby the river of their village. The learned Sessions Judge has discarded their remaining evidence on the grounds of material contradictions and omissions. Upon the careful reading of the depositions of both the witnesses, we find that the learned Sessions Judge has rightly believed their evidence to the extent as stated above in this para.
(13) It is settled in law that conviction under Section 302 IPC can be imposed on the basis of an oral dying declaration provided that it is found trustworthy and reliable (See Prakash and another Vs. State of M.P., AIR 1993 SC 65, and State of M.P. Vs. Ashok and another, ILR 2008 MP 1503 MP). Now, we proceed to examine evidence of Tejbali Singh (PW-3) and Sahablal (PW-4) who are the witnesses of oral dying declaration alleged to have been given by deceased Ramsiya.
(14) Tejbali Singh (PW/3), has deposed that in the morning of the day of the death of deceased Ramsiya, his wife Raniya came to his house and requested him to come over to her house. Thereupon, he went to her house, where he saw deceased Ramsiya lying on the ground in the Aangan of his house in the injured condition and a few persons of his village were present. Deceased Ramsiya told them that accused Manmurat inflicted injuries to him by shooting arrows from a bow. This witness has also deposed that at about 11:00 AM, deceased Ramsiya had expired.
(15) We find that it is not mentioned in the FIR that when deceased Ramsiya had made the alleged oral dying declaration in his house, Tejbali Singh was present. This witness in para 7 of his cross-examination has failed to state the names of persons who were present in addition to him, when deceased Ramsiya had made the alleged oral dying declaration. He has also admitted that the police had neither interrogated him nor recorded his case diary statement. He has also admitted that the police had only obtained his signatures on Ex.P-2, Ex.P-3 and Ex.P-5. On the basis of the aforesaid evidence, we doubt his presence at the time when deceased Ramsiya had made the alleged oral dying declaration. Consequently, we hold that his evidence is not reliable and truthful.
(16) Sahablal (PW/4) is another witness of the alleged oral dying declaration. He has deposed that in the morning of the day of the death of deceased Ramsiya, his wife Raniya came to his house and told him that deceased Ramsiya was badly beaten. Thereupon, he went to her house and saw deceased Ramsiya lying in the Aangan of his house and a few persons were present there. He asked deceased Ramsiya as to how he sustained injuries. He told them that while returning from a shop, accused Manmurat caused injuries by shooting arrows and by assaulting him with a tangi. In para 9 of cross-examination, this witness has admitted that at the time of making the alleged oral dying declaration, deceased Ramsiya was not fully in a state of consciousness throughout and that he passed frequently into the states of unconsciousness. His speech was also not clear and that he was also speaking in a very low voice. It is worth mentioning at this juncture that autopsy surgeon Dr. R.G. Kotiya (PW/8) has stated in his evidence that when he had performed the post-mortem examination on the dead body of deceased Ramsiya, the smell of liquor was coming out of his mouth and alimentary canal. Thus, the deceased Ramsiya had made the alleged dying declaration under the influence of liquor. On the basis of the aforesaid evidence, it is crystal clear that deceased Ramsiya has not made the alleged oral dying declaration in the fit state of mind. This witness has also admitted in para 8 of his cross-examination that the police had not interrogated him and nor did record his case diary statement. From this reason also, we doubt that deceased Ramsiya had made the alleged oral dying declaration in his presence. From the aforesaid analysis of evidence of this witness, we hold that his evidence is not reliable and trustworthy.
(17) From the closed scrutiny of evidence of both the witnesses of the alleged oral dying declaration, we hold that it is not proved beyond the reasonable doubt that deceased Ramsiya had made the alleged oral dying declaration before his death.
(18) Raniya (PW/1), the wife of deceased Ramsiya, has admitted in para 11 of her cross-examination that deceased Ramsiya was a habitual drinker and that on the date of incident, he sold one quintal Mahua at Rs.1,000/-. In the evening of the fateful night of the incident, deceased Ramsiya had gone to buy grocery items taking the amount, but he did not return with them. It is undisputed fact that this witness, Manu (PW/2) and accused Manmurat brought the deceased by lifting him from a place nearby the village river. Autopsy surgeon, Dr. R.G. Kotiya (PW/8) has stated in his evidence that at the time of performing post-mortem on the dead body of deceased Ramsiya, the smell of liquor was coming out of his mouth. If the aforesaid evidence is combined together, then a reasonable inference may be drawn that on the fateful night deceased Ramsiya had a drink party nearby the village river with his friends and in the course of which, some of them caused him injuries while snatching his money.
(19) As per the evidence on record, the police had sent a half pants and an arrow seized from the possession of accused Manmurat vide seizure memo Ex.P-8 for forensic examination with other articles. As per FSL report Ex.P-18, human blood was found on the half pants and the tests being carried out on the arrow remained inconclusive to determine the origin of blood. As per the FIR and statements of Raniya (PW/1) and Manu (PW/2), they and accused Manmurat brought the deceased by lifting from a place where he was lying to his house. In the circumstance, it is highly probable that while deceased Ramsiya being carried by them in injured condition, some drops of blood had fallen on the wearing half-pants of accused Manmurat. Therefore, the learned Sessions Judge has erred in connecting accused Manmurat with the murder of deceased Ramsiya on the basis of stains of human blood having been found on his half-pants.
(20) From the aforesaid close scrutiny of evidence on record and reasoning, we arrive at the ultimate conclusion that the learned Sessions Judge has convicted accused Manmurat upon erroneous appreciation of evidence. Thus, we allow this appeal and set aside the impugned judgment of conviction and sentence. Accused-appellant Manmurat is acquitted of the charge under Section 302 IPC. The concerned Jail Authority is directed to set him free immediately if his detention is not required in any other case.