The State of Rajasthan Vs. Misariya and ors. - Court Judgment

Excerpt:
- n.p. gupta, j.1. this appeal has been filed by the state seeking to challenge the judgment of the learned sessions judge, jalore dated 17.12.1986 acquitting all the respondents of all the charges being under section 147, 148, 302 read with section 149 ipc.2. the necessary facts are that one babu ram p.w. 1 gave information at police station ahore on 6.5.1986 at 9 a.m. (ex. d-2) to the effect that there exists enmity between them with meenas, and in the morning when he was in the house he heard a cry that when his brother ganesha was passing through in front of the house of meena, meenas started beating him, therefore, he straight-way rushed to guda balotan, and from there he come to the police station by travelling in a bus. he has maintained that he did not go on the spot, and does not know as to who had given beating, and what is the magnitude of the injuries received. since this information did not disclose any cognisable offence an entry was made in the rojnamcha, and s.h.o. gom singh alleges to have proceeded with babulal on the spot, and recorded the statement of the victim ganesha s/o gena bheel (ex. p-23) wherein it was given out, that when he reached in the street wherein the house of kapura meena is situate misariya came from towards the house of kapura and caught hold of him. then, kapura his son kuiya, chukiya, karna, narsa, and galba, all by caste meenas came armed with lathis and kulharis, and started giving beating to him with lathis, as a result of which he fell down, and even thereafter chukiya inflicted injuries on the right hand, and ribs, and karna inflicted injuries on left hand, and narsa inflicted injuries on the feet, and all of them gave him beating badly, giving out that he should be killed, so lying injured he shrieked but nobody intervened, and after he was seriously injured the accused persons left. he has also stated that while he was given beating no local inhabitant came to his rescue. after some time kalyan master sb., and tar ji purohit came, to whom also he narrated all these things. he stated that in the beating he received injuries on both the hands above elbow, which started bleeding, right scapula got swollen, and ribs have sustained fractures, he had received severe injuries on both the legs, and he is feeling acute internal pain. he had also given out that it was on account of some dispute on the occasion of holi that the accused persons have given beating. this statement bears the signature of p.w. 14 investigating officer gom singh, and also purportedly bears thumb mark of the victim ganesha. on recording this statement a formal first information report ex. p-33 was recorded against the seven respondents for the offence under section 147, 148, 149, 323, 324, and 307 ipc. however, in the evening the victim expired, therefore, the offence under section 302 ipc was also added. earlier the injured was got medically examined vide report ex. p- 34, and after death post mortem examination was got conducted on 7.5.1986, report being ex. p-35. after completing necessary investigation a charge sheet was submitted in the court of chief judicial magistrate, jalore, wherefrom the case was committed.3. learned trial court charged the accused persons under section 147, 148, 149 and 302 ipc. during trial the prosecution examined 16 witnesses, and tendered in evidence 35 documents, while the accused did not lead any evidence in defence, but then tendered in evidence four documents, being the police statement of babu ex. d-1, police statement of gajra ex. d-3, police statement of kala ex. d-4, and the copy of rojnamcha ex. d-2. learned trial court found that except p.w. 1 and p.w. 6 babu ram and gajra who are the informant cum brother of the deceased and his widow, all other witnesses produced as eye witnesses have not supported the prosecution case, and were declared hostile. then, learned judge proceeded to examine the evidence of p.w. 1 and p.w. 6, and found, that p.w. 1, as a matter of fact, is not an eye witness and his evidence is not reliable. likewise, regarding p.w. 6 also it was found that she does not appear to be an eye witness, or to have seen the incident, and therefore, she cannot be believed. then, regarding ex. p-23 the dying declaration the learned trial court found it to have not been recorded in accordance with the provisions of rule 6.22 of the police regulations, and in para-19 also found other infirmities, rather circumstances casting serious doubt on the reliability of the theory of recording dying declaration, and thus found it to be not safe to rely upon this dying declaration ex. p-23. consequently, it was found that the prosecution has failed to lead any evidence against the accused persons, and he acquitted all of them.4. arguing the appeal the learned public prosecutor read to us the impugned judgment, the dying declaration ex. p-23, the statement of investigating officer p.w. 14, statement of p.w. 6 gajra, statement of p.w. 16 kajim ali, and that of p.w. 15 dr. a.s.m. mathur, and submitted that though p.w. 1 and p.w. 6 cannot be believed to be the eye witness but then learned trial court was in error in not holding ex. p- 23 to be dying declaration, and recording acquittal. in the submission of the learned public prosecutor ex. p-23 is clearly a dying declaration, and it was required to be considered that even rule 6.22 contemplates requirements to be followed whenever possible, and therefore, simply because those requirements have not been followed, the dying declaration could not be held to be not a dying declaration, nor could it be discarded. referring to the statement of p.w. 14 it was contended, that the dying declaration was recorded in the hospital of guda balotan, and therefore, the victim was taken to the hospital at jalore, where the victim became unconscious. then, by referring to the statement of kajim ali p.w. 16 it was contended that when the victim was brought to the hospital at guda balotan where p.w. 16 was compounder the victim was in the senses gks'k esa fkk. from this statement it is sought to be contended, that till the statement of the victim were recorded as ex. p-23 the victim was in senses, and after taking to jalore he became unconscious, therefore, his statement could not be recorded in presence of doctor at jalore, but then on that ground ex. p-23 could not be discarded, or even disbelieved, and thus the acquittal is required to be set aside.5. learned counsel for the accused respondents, on the other hand, supported the impugned judgment.6. we have heard learned counsel on either side, and have gone through the record.7. from a look at ex. p-23 it is clear that the requirement of rule 6.22 have not been complied with. of course, it is true that rule 6.22 requires the compliance to be done whenever possible. it is also true that simply because in the given case requirement of rule 6.22 have not been complied with, dying declaration cannot be thrown out, if it otherwise inspires full confidence of the court. in these circumstances, in our view, the crux of the matter to be examined is, as to whether notwithstanding noncompliance of rule 6.22, the dying declaration inspires confidence, or not. in this regard, we would like to take into account the other attending circumstances.8. p.w.1 babu who is the informant has stated, that on account of the beating the victim sufficiently bled, who was in senses, and was speaking a little bit fkksm+k&fkksm;+k cksy jgk fkk. then, he has stated that in the hospital ganesha gave statement to the police. in cross examination he has stated that police people had recorded statement of ganesha on the spot also. when the statement was recorded in the guda hospital doctor was also available, and after reaching jalore the police again recorded his statement at jalore, and on the statement recorded in jalore signatures of ganesha were obtained by the police. as against this gajra p.w. 6 has an entirely different story to say, inasmuch as she has stated that her husband was taken to guda hospital in the injured condition. she does not say anything in regard to recording of any dying declaration, or the statement of ganesha by the police, though she continues to be with him till his death. then in cross examination she has deposed, that victim was taken to hospital in motor, the statement of ganesha were initially recorded in guda hospital, where doctor sb. and police people were there, she does not know as to whether thumb marks of ganesha were obtained, or not. however, she maintains that statements were not recorded in their presence, as they were asked to go out. then, she maintains that in jalore hospital statements were recorded by the police, at which time she and the doctor were there, the brother of the deceased babu ram (p.w.1) and prahlad were also there in the jalore hospital. then, she categorically states that the victim could not speak, therefore, she did not talk to him. as against this according to i.o. gom singh p.w. 14 on receipt of the information from babu ram, it was recorded in the rojnamcha, but being not complete, he went on the spot with the police party, and recorded the statement of ganesha, being ex. p-23, and obtained the thumb mark of ganesha at mark-x. then, ganesha was brought to police station guda, there the condition of the victim deteriorated, therefore, he was sent to hospital, jalore. then, improving upon the things he states that ex. p-23 was recorded in guda hospital. then, he states that in jalore hospital since the victim became unconscious, his statement could not be recorded any more, and in the evening he received information about the victim having died in the hospital. in the cross examination he has admitted that he did not append any note on ex. p-23 about the victim giving statement in senses.9. the above recapitulation of the evidence shows that p.w.1 and p.w. 6 are consistent to the effect, that the statement of ganesha was recorded on the spot, then in the hospital at guda balotan, and then in the hospital at jalore, while according to the i.o. the statement was recorded on the spot. then, he changed his version by deposing the statement to have been recorded in the hospital guda balotan. according to p.w. 6, the doctor was available at the time of recording statement at guda balotan. giving discount of literacy level of p.w. 6, if we look at the statement of kajim ali who happens to be male nurse, it can be conjectured that p.w. 6 might have considered the male nurse to be doctor, but then this much is clear from the statement of p.w. 6 and p.w. 16 that when the victim was taken to hospital guda balotan, where the victim was given first aid the hospital staff male nurse p.w. 16 was very much available, and according to p.w. 16 the s.h.o. did not record the statement of ganesha in his presence. this shows that it was possible for the s.h.o. to associate kajim ali at least and/or the other family members of the victim, including p.w. 1 and p.w. 6 in recording the statement of ganesha, if were given out by ganesha.10. then, the other thing that emerges from the evidence of p.w. 1 and 6 is, that according to p.w. 1, ganesha was speaking only a little bit fkksm+k&fkksm;+k cksy jgk fkk while according to p.w. 6 ganesha was not in a position to speak, therefore, despite meeting him she could not ask as to who were the assailants. in this state of affairs if ex. p-23 is read, it purports to give out a complete and vivid description of the entire incident, which does not appear to be possible to be deposed, or stated, by ganesha to the s.h.o. this coupled with the fact, that even on ex. p-23 the s.h.o. had not purported to record even his own satisfaction about the victim being in a fit state of physic and mind to give statement, likely to be used as dying declaration, and even while in the witness box p.w. 14 has not deposed that the deceased was in a fit state of physic and mind to give out the statements as given being ex. p-23.11. law in regard to appreciation of dying declaration can succinctly be put in the manner, that the dying declaration is also as good a piece of evidence as any other evidence. however, unlike other evidence, it being the statement of the victim, not having been made on oath, having been made in absence of the accused, and the accused having no opportunity to cross examine the deponent, the court has to act with appropriate circumspection, and should not readily fall prey to the dying declaration, which, in the given case, or in given circumstances, could be easily fabricated by the investigation, in the event of not finding any other appropriate reliable evidence, and the court should fully satisfy its judicial conscience, about the alleged dying declaration being a reliable version of the victim, under apprehension of death, and to have been recorded by the authority concerned, when the victim is in a fit state of mind, to correctly recapitulate the things, and given them out, so as to form the dying declaration.12. if in the present case ex. p-23 is considered on these parameters, in our view, we have grave doubts about the victim ganesha having given any statement like ex. p-23, and the possibilities are not ruled out about ex. p-23 being fabricated by the investigation. to repeat when according to p.w. 6, ganesha was not in a position to speak while according to p.w. 1, ganesha could hardly speak, and then despite p.w. 16 being available at the guda balotan hospital, and despite p.w. 1 and p.w. 6 being available there, they are not associated with the alleged recording of the dying declaration by the s.h.o. it creates a very serious doubt about the victim ganesha having given any statement like ex. p-23.13. in these circumstances, in our view, it cannot be said that the learned trial court was in error in not relying upon ex. p-23 in favour of the prosecution.14. then, for our satisfaction, we have gone through the statement of p.w. 1 and p.w. 6, and find that the reasoning given by the learned trial court for disbelieving their evidence also does not require any interference by this court in our appellate jurisdiction.15. the net result is that the appeal is devoid of merit, and the same is, therefore, dismissed.