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FIR rightly relied upon by courts as dying declaration of deceased victim: SC

Devilal and Others v. State of Madhya Pradesh

Criminal Appeal No. 989 of 2007

Decided on February 25, 2021.

Counsel for appellants: Mr. Sushil Kumar Jain

Counsel for Respondent: Mr. Harmeet Singh Ruprah

A three-judge bench comprising of Justice Uday Umesh Lalit, Justice Indira Banerjee and Justice K.M. Joseph decided the present case. The bench dismissed the appeal made by the appellants.

The facts of the case state that the crime arose from F.I.R. No.212 of 1998 registered at 11.10 p.m. on 19.07.1998 with Police Station Manasa, District Neemach, Madhya Pradesh by one Ganeshram. The FIR was recorded by PW8-Shankar Rao, who, then took Ganeshram along with Tehsildar to Community Health Centre, Manasa, where PW9-Dr. Kailash Chandra Kothari examined injured Ganeshram. It was found that the general condition of the injured was not good; that he was unable to speak; and that his blood pressure could not be recorded. While PW9-Dr. Kothari was completing the formalities, Ganeshram expired at 1.00 a.m. Dr. Kothari, therefore, recorded the information of death in Exhibit P/26 under his signature.

A post-mortem was conducted on the dead body of Ganeshram and the cause of death was stated to be excessive bleeding from the injuries suffered by the deceased. During the investigation, PW8-Shankar Rao prepared a site map Exhibit P/18 and arrested accused Devilal, Gokul and Amrat Ram vide Exhibits P/5 to 7. Pursuant to the disclosure statements made by the accused, a sword was recovered from Gokul vide Exhibit P/8, a lathi was recovered from Amrat Ram vide Exhibit P/9 and an axe was recovered from Devilal, vide Exhibit P/10.

After considering the evidence on record, the Trial Court found that the FIR recorded at the instance of the deceased could be relied upon as dying declaration and that the statements of PW1-Sajan Bai, PW2-Saman Bai and PW7-Laxminarayan as well as the recoveries at the instance of accused Devilal, Gokul and Amrat Ram proved the case of prosecution. By its judgment and order dated 01.05.1999, the trial court found that the offense under Section 302 read with 34 IPC was proved by the prosecution as against accused Devilal, Gokul, and Amrat Ram, but was not proved against the fourth accused Gattubai.

Being aggrieved, Criminal Appeal No. 700 of 1999 was preferred by the three accused in the High Court. The High Court affirmed the conviction and sentence recorded against the accused and dismissed the appeal by its judgment and order dated 14.09.2006, which is presently under challenge before this Court. I.A. No. 4224 of 2017 was, thereafter filed submitting inter alia that accused Amrat Lal was a juvenile on the day the offense was committed and that in the light of the decision of this Court in Hari Ram vs. the State of Rajasthan and another, (2009) 13 SCC 211, the submission of his juvenility was raised before the court.

The learned Counsel for the appellants submitted that given the cross-examination of PW9-Dr. Kothari, it would be impossible to believe that Ganeshram could have made any reporting to the police as alleged. It was submitted that, according to the FIR, the incident had occurred around 8.00 p.m., while the FIR was recorded after more than three hours. Mr. Jain has further submitted that, as accepted by PW1-Sajan Bai, witnesses were tutored and, as such, the value of the testimony of PWs 1 and 2 stands diminished to a great extent. Relying on the cross-examination of PW7-Laxminarayan, it was submitted that the front of the house of accused Devilal where the incident was stated to have occurred was not visible for the alleged eyewitnesses.

The submissions were countered by Mr. Harmeet Singh Ruprah, learned Advocate for the State. He submitted that the testimonies of PWs 1 and 2 are quite consistent; their presence was recorded right from the initial stage of reporting of the crime; that the distance between the houses was just about 100 feet and that there was no effective cross-examination on the issue whether they had enough opportunity to witness the incident.

The Court heard the Counsels for both parties.

At the outset, the Court dealt with the issue of juvenility of Amrat Ram. It stated:

It is thus clear that, even if it is held that Amrat Ram was guilty of the offence with which he was charged, the matter must be remitted to the jurisdictional Juvenile Justice Board for determining appropriate quantum of fine that should be levied on Amrat Ram. (Para 18)

The Court then addressed the issue of whether the appellants were rightly held guilty by the courts. It stated that the FIR was rightly relied upon by the courts as dying declaration on part of Ganeshram. The Court observed:

The FIR itself referred to the presence of PW1-Sajan Bai and PW2-Saman Bai. The substantive testimony of both these witnesses clearly discloses that the appellants had opened an assault on Ganeshram which led to his death. The assertion on part of PW1-Sajan Bai that her earlier statement recorded during investigation was read over to her does not mean that she was tutored to follow the line of prosecution. It is relevant to note that no such questions were put to PW2-Saman Bai. Thus, even if the testimony of PW1-Sajan Bai is eschewed from consideration, the deposition of PW2-Saman Bai, along with the dying declaration of Ganeshram, completely clinch the matter against the appellants. Additionally, the recoveries of the weapons in question viz., lathi, sword and axe also lend sufficient corroboration to the case of the prosecution. (Para 22)

The Court affirmed the view taken by the lower courts and held the appellants guilty of the offense, thereby dismissing the appeal.

Saptarshi Mukhopadhyay



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