CASE NO.: Appeal (crl.) 532-534 of 2003 PETITIONER: BABU LAL AND ORS. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 31/10/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT:
JUDGMENT
2003 Supp(5) SCR 39
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. Twelve persons faced trial for alleged commission of
offences punishable under Sections 147, 148, 302 read with Section 149 of
the Indian Penal Code, 1860 (in short the ‘IPC‘), were convicted by First
Additional Sessions Judge, Shivpuri and sentenced to undergo imprisonment
for life in respect of offence punishable under Section 302 read with
Section 149 IPC and three years for the rest of the offences. They
preferred three appeals before the Madhya Pradesh High Court. By the
impugned judgment the appeals were dealt with together and conviction and
sentence in respect of Tulua (A-l), Babulal (A-2), Mahesh (A-6), Sahab
Singh (A-9), Kishan Singh (A-10), Netram (A-l 1) and Jagdish Prasad (A-12)
were maintained. Sentences of Tulua (A-l), Babulal (A-2) and Netram (A-11)
were reduced to one year and two years respectively for offences relatable
to Sections 147 and 148 respectively. The conviction in respect of Uttam
Singh (A-3), Phool Singh (A-4), Sobran Singh (A-5), Krishna Kant (A-7) and
Sarman Singh (A-8) was set aside. Tulua, Babulal and Netram (A-l, A-2 and
A-l1 respectively) were acquitted of the offence relatable to Section 148.
They were convicted of the offence punishable under Section 147 IPC, while
the convictions of Sahab Singh (A-9), Kishan Singh (A-10) and Jagdish
Prasad (A-12) under Section 148 IPC were maintained with modified
sentences. The said judgment is impugned in these appeals.
Prosecution version in a nutshell leaving out unnecessary details is as
follows:
Manila Raj Kunwar (PW-20) was previously the wife of accused Babulal (A-2).
This marriage was performed while she was a minor. Since the character and
reputation of Babulal was not without blemish and he was a habitual
drunkard and used to gamble and had illicit relations with ladies, there
was tension in the relationship between Raj Kunwar and Babulal. When the
former tried to reform the latter and requested him to follow the correct
path in life, she was beaten and was thrown out of his house in December,
1985. Thereafter, she started living in the house of her father. According
to the customs prevalent she was re-married on 3rd March, 1986 with Chhatar
Singh (hereinafter referred to as the deceased). This led to hostility and
Babulal became inimical to deceased. He tried to arouse the communal and
caste feelings. On the date of occurrence i.e. 9th March, 1986 while
deceased was drawing water from his well all the accused persons reached
there. Accused Jagdish, Sarman and Kasiram were armed with a Luhangi each.
Accused Sabo was armed with a gun, accused Mahesh was armed with a knife
and accused Pappu was armed with a hockey stick. Accused Sobran, Kishan Lal
and Phoola were also each armed with Luhangi. In addition, accused Netram,
Tulua and Babu were holding lathis in their hands. After reaching the place
where deceased was standing accused Jagdish caught hold of him and other
accused persons with common intention to cause his death inflicted injuries
by respective weapons. Though the deceased cried for help no one
immediately came to save him. However, when his mother (PW-2) reached near
him, all the accused persons left the place. The deceased along with his
mother (PW-2) and Pran Singh (PW-1) went to the Police Chowk, Magrauni and
lodged a first information report regarding the incident with the then
Station Incharge. Pran Singh (PW-1) had gone to the place on hearing from
Brijesh Kumar (PW-11). When report was lodged Shiv Baksh Singh (PW-16) sent
the deceased for medical examination where Dr. Ajay Kumar Pathak (PW-19)
conducted medical examination. He found nearly 17 injuries on his body.
There were four internal injuries also. Most of them were inflicted with
sharp edged weapons whereas some were caused by hard and blunt weapons. The
deceased was referred to the District Hospital, Shiv Puri for better
treatment. Subsequently, the deceased breathed his last at the Primary
Centre itself and could not be taken to the referral hospital. On
completion of investigation, charge sheet was placed and the accused
persons faced trial. They claimed innocence and false implication.
Though the trial Court did not place much reliance on the evidence of the
so-called eye-witnesses, yet placed implicit reliance on evidence of the
deceased which was given before the police by way of an information which
formed the first information report and was treated as a dying declaration.
Accordingly, the appeal was allowed to the extent indicated, and in respect
of some of the accused there was confirmation of the conviction and
sentence. During the pendency of the appeal accused Tulua has died and by
order dated 5.6.2003 it was directed that the appeal has abated so far as
he is concerned.
In support of the appeals, learned counsel for the appellants submitted
that the approach of the High Court is erroneous. The evidence has not been
analysed in detail which was required to be done, even though the High
Court concurred with the reasoning and the conclusions. The dying
declaration is not acceptable and even there is no material to show that he
was in a fit condition to make the dying declaration. Even the eye-
witnesses were not very sure that the deceased was in a fit condition, and
even Murali and Brijesh Kumar (PWs 3 and 11 respectively) have given
varying statements regarding his consciousness and Dr. Ajay Kumar Pathak
(PW-I9) was vague about his consciousness. Though Pran Singh (PW-1) stated
that the deceased had put his signatures in the FIR, the original documents
show that it was a thumb impression. The deceased was involved in a number
of criminal cases. Therefore, it is not unlikely that he had many enemies
and accused persons had been falsely roped in. Though the trial Court had
disbelieved the evidence of PWs. l, 2, 3 and 11 the High court by erroneous
conclusion had placed reliance on their evidence.
In response, learned counsel for the State submitted that the High Court
has elaborately analysed the materials on record and has come to the right
conclusion relying on the dying declaration. Though there was no necessity
for any corroboration, the same was provided by the evidence of PWs 1, 2, 3
and 11 on which the High Court has acted upon.
Coming to the plea of appellants relating to detailed analysis of evidence,
it can only be said that while concurring with the conclusions there need
not be elaborate analysis which would be in essence a repetition of the
conclusions and the reasoning. However, that does not do away with the
requirement of High Court in analyzing the evidence and to indicate
sufficient reasons even for the concurrence. There cannot be total absence
of reasons. The position is different when the appellate Court reverses the
findings and the conclusions. In such a case there is an imperative
requirement for detailed analysis of the evidence and reasoned conclusions.
In the case at hand the High Court has dealt with the evidence and it
cannot be said that there was total absence of reasons. Though analysed in
brief, yet the vital aspects have been touched.
The pivotal point which was pressed into service with some amount of
vehemence was acceptability of dying declaration. There is no legal bar for
the information given by the deceased to be treated as a dying declaration.
This position was stated succinctly by this Court in Munnu Raja and Anr. v.
State of M.P., AIR (1976) SC 2199. Section 32 of the Indian Evidence Act,
1872 (in short the ‘Evidence Act‘) deals with dying declaration. A person
who is facing imminent death, with even a shadow of continuing in this
world practically non-existent, every motive of falsehood is obliterated.
The mind gets altered by most powerful ethical reasons to speak only the
truth. Great solemnity and sanctity is attached to the words of a dying
person because a person on the verge of death is not likely to tell lies or
to concoct a case so as to implicate an innocent person. The maxim is “a
man will not meet his maker with a lie in his mouth” (Nemo moriturus
praesumitur mentire). Mathew Arnold said, “truth sits on the lips of dying
man”. The general principle on which the species of evidence is admitted is
that they are declarations made in extremity, when the party is at the
point of death, and when every hope of this world is gone, when every
motive to falsehood is silenced and mind induced by the most powerful
consideration to speak the truth; situation so solemn that law considers
the same as creating an obligation equal to that which is imposed by a
positive oath administered in a Court of justice (See R.V. Woodcock 1 Leach
500).
The materials on record clearly established that the deceased was in
mentally fit condition, though battered in the physical frame. The High
Court has rightly held that presence of PWs 1 and 2 did not result in any
presumption of tutoring, when the FIR was recorded. Merely because there
was a thumb impression on the FIR, and not the signature as stated by PW-1,
that does not falsify the prosecution version. The same has been clarified
by the High Court. It has to be noted that PW-16, who had scribed the FIR,
stated that the contents were read over to the deceased, who had thereafter
put his thumb impression. In fact the defence itself has suggested to PW-1
during cross examination that the thumb impression was taken on the paper
first and thereafter the writings were inserted. In other words, there was
acceptance of the fact that the thump impression was there but writings
were done later which have been denied by PW-1. We do not find any reason
to discard the dying declaration only on this ground. The High Court has
also found in analyzing the evidence that the plea relating to anti dating
or anti timing of the FIR is a myth. Though some of the accused persons
have been acquitted by the trial Court, the High Court has carefully
analysed the evidence and have sifted the grain from the chaff and
disengaged truth from falsehood. Merely because some persons have not been
named in the FIR and have given the benefit of doubt, that cannot be a
reason for discarding the dying declaration or the evidence of the
witnesses.
As far as the condition of the deceased at the time of dying declaration is
concerned it has been clearly established by the eye-witnesses that the
declarant was in a condition to make the dying declaration. It is to be
noted that at the time of dying declaration, the presence of PW-2 has been
clearly mentioned. The evidence of PWs 1, 2 and 3 was treated to be as
partisan. Relationship is not a factor to wipe out the credibility of any
witness’s evidence. The Court in a case where relatives are witnesses has
to test their version on the touchstone of acceptability and credibility.
If after careful analysis the evidence is found credible, it can be relied
and acted upon to form the basis of conviction. (See Munshi Prasad v. State
of Bihar, [2002] 1 SCC 353, Hukum Singh v. State of Rajasthan, [2000] 7 SCC
410, Bhagwan Singh v. State of M.P., JT (2002) 3 SC 387. The High Court has
precisely done that. The trial Court had entertained a shadow of doubt
merely on account of their relationship. As rightly observed by the High
Court the approach is indefensible. That being the position, the evidence
of eye-witnesses which has a ring of truth deserves acceptance, which the
High Court has done. Though the evidence of PW-11 was attacked on the
ground of having traces of tutoring, yet his whole evidence does not get
wiped out even if it is assumed, as urged, that it contains exaggerations
and embellishment. PW-2 who is the mother of the deceased had reached the
place first. The presence of PW-2 (mother of the deceased) has been
established by ample evidence. The appeals are sans merit and deserve
dismissal, which we direct.