The Executive Magistrate had purportedly recorded a statement of P.W.1 Jagannath in the form of a dying declaration. In view of Section 157 of the Indian Evidence Act, 1872 the so-called dying declaration can be treated as a former statement made by P.W.1 and, therefore, the same can be used for contradicting the witness. When P.W.1 Jagannath was confronted with a portion of hisstatement at Ex.D-2, he accepted that the statement does not refer to the presence of accused nos.1, 3, 7, 8 and 9. {Para 7}
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.162 of 2010
Ramcharan (Dead) & Anr. Vs State of Madhya Pradesh
Author: Abhay S. Oka, J.
Dated: December 07, 2022.
1. These two appeals take exception to the judgment dated 31st
July 2009 passed by the High Court of Madhya Pradesh by which
conviction of the appellants has been confirmed. In all, there were
nine accused. The appellants in Criminal Appeal No.162 of 2010 are
accused nos.2 and 3 and the appellant in Criminal Appeal No.1716 of
2010 is accused no.9.
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2. As per the case of the prosecution, when the incident occurred,
the complainant Jagannath (P.W.1) and his wife Kamlabai (P.W.8)
along with their son deceased Laxminarayan as well as two
daughters-in-law Suganbai (P.W.10) and Sharmilabai (P.W.11) were
sleeping in the house situated near a tube-well in their field. P.W.10
and P.W.11 were sleeping inside the house and others were sleeping
outside. Around midnight, the accused reached the house and
started assaulting Jagannath (P.W.1). When P.W.8 Kamlabai tried to
save P.W.1 Jagannath, even she was assaulted by the accused. At
that time, deceased Laxminarayan came there to protect his parents.
He was also assaulted by the appellants. Though deceased ran away
to save himself, the accused chased him and assaulted him. He
sustained injuries. While he was being taken by a tractor to the
police station, he died on the way. It must be noted here that P.W.18
who was the Executive Magistrate purportedly recorded a statement
of P.W.1 Jagannath as a dying declaration. The Trial Court found all
nine accused persons guilty of the offence punishable under Section
302 of Indian Penal Code (for short, ‘IPC’) with the aid of Section 149
of IPC. The Trial Court held that accused no.1 - Ranglal and accused
no.4 - Prem Singh were guilty of the offence punishable under Section
325 read with Section 149 of IPC for assaulting P.W.1 Jagannath.
The said two accused were also held guilty of the offence punishable
under Section 325 read with Section 149 of IPC for assaulting P.W.8
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Kamlabai. Both accused nos.1 and 4 were also convicted for the
offence under Section 148 of IPC. The Trial Court sentenced all the
accused to undergo life imprisonment for the offence punishable
under Section 302 read with Section 149 of IPC. The accused were
also separately punished for the other offences.
3. There were separate appeals preferred by the accused. It must
be noted here that accused no.4 Prem Singh died during the
pendency of the appeals. By the impugned judgment, the High Court
acquitted accused no.1 Ranglal; accused no.5 Bhagwan Singh;
accused no.6 Kamal Singh; accused no.7 Benu and accused no.8
Lakhan. However, the conviction and sentence of the appellants in
these two appeals was maintained. The learned counsel for the
appellants during the course of submissions stated that accused no.2
who is the appellant no.1 in Criminal Appeal No.162 of 2010 has
passed away.
4. Ms. Pragati Neekhra, learned counsel appearing for appellants
in Criminal Appeal No.162 of 2010 has made detailed submissions.
Mr. Sharangouda S. Patil, learned counsel appointed to espouse the
cause of appellant in Criminal Appeal No.1716 of 2010, has assisted
the Court. The learned counsel appearing for appellants has taken us
through the judgments of the Trial Court and the High Court as well
3
as the material part of depositions of the prosecution witnesses. The
learned counsel pointed out that the appellants have been convicted
only on the basis of the evidence of P.W.1 Jagannath and P.W.8
Kamlabai and the evidence of the two other injured persons, namely,
P.W.10 Suganbai and P.W.11 Sharmilabai has been disbelieved. She
submitted that in fact evidence of P.W.1 and P.W.8 also deserve to be
discarded as there are number of material omissions and
contradictions brought on record during their cross-examination.
She submitted that a serious doubt is created whether both of them
have witnessed the incident as both of them were allegedly attacked
by the accused while they were sleeping. The learned counsel
appearing for the appellants submitted that though P.W.1 and P.W.8
had ascribed the same role to all the accused, the High Court has
disbelieved their version only insofar as accused nos.1, 5, 6, 7 and 8
are concerned. It was submitted that on the ground of parity, even
the appellants ought to have been acquitted.
5. Learned counsel appearing for the State urged that there was
no reason for the High Court to discard the testimony of P.W.10 and
P.W.11 who were injured eye witnesses. His submission is that both
the Courts have believed the testimony of P.W.1 and P.W.8 and,
therefore, there is no reason to interfere with the findings recorded on
the basis of appreciation of their evidence. He would, therefore,
4
submit that no interference is called for in the impugned judgment.
6. We have given careful consideration to the submissions. We
have perused the judgments impugned in these appeals as well as the
depositions of the material witnesses. As the High Court has
disbelieved the testimony of P.W.10 and P.W.11 who were allegedly
injured eye witnesses, their evidence will have to be kept out of
consideration. The evidence of P.W.1 Jagannath and P.W.8 Kamlabai
needed careful scrutiny as they are interested witnesses being the
parents of the deceased. In the examination-in-chief, P.W.1 claimed
that he was lying on a charpai when acquitted accused no.1 and
accused no.4 came there and started giving blows by a lathi. He
claimed that 5 to 7 people started assaulting his wife P.W.8. He stated
that after the deceased came out, the accused gave lathi blows to him
which caused his death. Though, he did not say that the assault on
the deceased was made after he ran away to some distance, P.W.8
has stated that when the deceased started running away, the accused
persons chased him and assaulted him. P.W.1 was confronted with
material part of his statement under Section 161 of the Code of
Criminal Procedure (for short, ‘Cr.PC’) recorded by the police. In that
part of his statement, he had stated that blows of lathi were given to
him when he was asleep and he woke up only after the assault.
P.W.1 denied to have made such a statement to the police. He also
5
accepted that he had not named accused no.6 Kamal in his police
statement.
7. The Executive Magistrate had purportedly recorded a
statement of P.W.1 Jagannath in the form of a dying declaration. In
view of Section 157 of the Indian Evidence Act, 1872 the so-called
dying declaration can be treated as a former statement made by
P.W.1 and, therefore, the same can be used for contradicting the
witness. When P.W.1 Jagannath was confronted with a portion of his
statement at Ex.D-2, he accepted that the statement does not refer to
the presence of accused nos.1, 3, 7, 8 and 9.
8. According to P.W.1, the accused were carrying lathis and the
deceased and injured witnesses received blows of lathis. However,
P.W.8 deposed that all the accused persons were carrying lathis and
farsa (axe). She stated that one of the accused was holding Ballam
(spear) and by using the said weapon, he caused injury to the eye of
P.W.1. As noted earlier, P.W.1 never claimed that any one was
holding weapons such as farsa and Ballam and that one of the
accused attacked him with Ballam. Though P.W.1 did not make out a
case that deceased Laxminarayan tried to run away, P.W.8 has come
out with the said case that the deceased ran away and she could see
from a distance that the accused were assaulting him.
6
9. P.W.8 in the cross-examination admitted that she cannot
describe who were holding lathis and who were holding Ballam.
Further in paragraph 12 of the cross-examination, she stated that
she did not see how the accused were assaulting deceased by use of
Ballam as she was far away. She accepted in the cross-examination
that there was no injury caused to her husband P.W.1 by use of
Ballam but the injury was caused by use of farsa. P.W.8 claimed that
she went to the spot when accused were assaulting the deceased.
However, she admitted that when the deceased came out of the
house, she and P.W.1 were lying down on charpai due to injuries and
they continued to lie down for a period of one hour. She admitted
that she was unable to tell as to which of the accused caused injuries
to the deceased and by which weapon. In further cross-examination,
P.W.8 admitted that only after her husband P.W.1 made hue and cry
that she woke up.
10. Thus, both P.W.1 and P.W.8 tried to implicate all the nine
accused by making omnibus statements. In his statement recorded
by the Executive Magistrate, P.W.1 did not disclose the names of five
accused including accused no.3 Boro and accused no.9 Shyam who
are the appellants in these appeals. Looking to the admissions given
by P.W.8 that she along with P.W.1 were lying down for a period of
7
one hour on the spot where they were assaulted and that fatal assault
was made on the deceased after he ran away from the spot, a serious
doubt is created whether both of them had seen the actual assault on
the deceased. Moreover, there is a serious discrepancy about the
weapons of assault. In the depositions of P.W.1 and P.W.8 though
role assigned by them to all the accused was the same, the High
Court acquitted accused no.1 Ranglal; accused no.5 Bhagwan Singh;
accused no.6 Kamal Singh; accused no.7 Benu and accused no.8
Lakhan. Neither the State Government nor the victim of the offence
have challenged their acquittal. Apart from the fact that there is a
serious doubt created about the truthfulness of the version of P.W.1
and P.W.8, there was no reason for the High Court for treating the
appellants differently from the acquitted accused. The accused no.1
who allegedly assaulted both the witnesses has been already
acquitted by the High Court. The accused no.4 who allegedly
assaulted them has died during the pendency of the appeal before the
High Court.
11. In the circumstances, taking overall view of the case, the
conviction of the appellants cannot be sustained. As noted in order
dated 22nd January 2010 in Criminal Appeal No.162 of 2010, at the
time of grant of bail, appellant no.1 (accused no.2) had undergone
sentence for seven and half years and the appellant no.2 (accused
8
no.3) had undergone sentence of 10 years. The appellant in the other
appeal who is accused no.9 had undergone sentence for 7 years and
10 months at the time of grant of bail, as noted in the order dated
17th January 2011.
12. Hence, the appeals are allowed. The impugned judgment of
the Trial Court and the High Court to the extent to which conviction
of appellants (except appellant no.1 in Criminal Appeal No.162 of
2010) in these two appeals was confirmed, are set aside and the said
appellants (accused no.3 Boro and accused no.9 Shyam) are
acquitted of the offences alleged against them. The said two
appellants are on bail and, therefore, their bail bonds stand
cancelled. Criminal Appeal No.162 of 2010 stands abated as far as
appellant no.1 – Ramcharan is concerned.
…………………………………J.
[SANJAY KISHAN KAUL]
…………………………………J.
[ABHAY S. OKA]
New Delhi
December 07, 2022.
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