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SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Jitendra Kumar Mishra @ Jittu – Appellant
Versus
The State of Madhya Pradesh – Respondent
Criminal Appeal Nos. 1347, 1348 of 2011
Decided On : 05-01-2024
Indian Penal Code, 1860 – Section 302 r/w 34 – Indian Evidence Act, 1872 – Section 32 – Murder – Common intention – Life sentence – Prosecution is based upon oral dying declaration made by deceased to his brother and mother – Two eye-witnesses to incident were declared hostile – There is no specific material piece of evidence to establish that deceased was alive or in a position to speak when his brother and mother reached the spot – In these circumstances, dying declaration cannot be ex facie accepted to be correct unless it stands corroborated by any other cogent evidence – There is no material to corroborate dying declaration – Appellate court should be slow in interfering with conviction recorded by courts below but where evidence on record indicates that prosecution has failed to prove guilt of accused beyond reasonable doubt and that a plausible view, different from one expressed by courts below can be taken, appellate court should not shy away in giving benefit of doubt to accused persons – Conviction and sentence of appellants set aside by granting benefit of doubt. (Paras 7, 14, 16, 17 and 18)
Facts of the case:
Four persons were convicted to life imprisonment under Section 302 r/w 34 IPC with a fine of Rs.5000/- each, and in default of payment of fine with a further rigorous imprisonment for six months in Sessions Trial Number 378 of 2007 vide judgment and order dated 15.09.2008 passed by Trial Court. Conviction and sentence awarded by the Session Trial was upheld and both appeals were dismissed by High Court.
Findings of Court:
Post mortem report on record which was duly proved reveals that the deceased had died due to haemorrhage shock and cardio-respiratory failure. Apart from the injuries deceased had suffered other serious injuries, not only on neck, chest and abdomen but also on the lower limbs from where bleeding had taken place. There was also an injury on the skull.
Result : Appeals allowed.
JUDGMENT :
PANKAJ MITHAL, J.
1. Heard learned counsel for the parties.
2. Four persons namely Manja alias Amit Mishra, Jitendra Kumar Mishra @ Jittu, Gledwin alias Banti Isai and Ajay alias Ajayya were convicted to life imprisonment under Section 302 r/w 34 IPC with a fine of Rs. 5000/- each, and in default of payment of fine with a further rigorous imprisonment for six months in Sessions Trial Number 378 of 2007 vide judgment and order dated 15.09.2008 passed by the 13th Additional Session Judge (Fast Track), Jabalpur, M.P.
3. On appeals, i.e. Criminal Appeal No. 2031 of 2008 preferred by Manja @ Amit Mishra and Jitendra Kumar Mishra @ Jittu together and Criminal Appeal No. 2237 of 2008 preferred by Gledwin @ Banti Isai and Ajay @ Ajayya together, the conviction and sentence awarded by the Session Trial was upheld and both the appeals were dismissed by the High Court.
4. It is in connection with the aforesaid Sessions trial and the conviction of the appellants under Section 302/34 IPC that the present appeals have been preferred one by Manja @ Amit Mishra and Jitendra Kumar Mishra @ Jittu and another by Gledwin @ Banti Isai and Ajay @ Ajayya. Both the appeals were tagged and leave to appeal was granted on 08.07.2011. During the pendency of the appeal, one of the appellants, namely, Manja @ Amit Mishra in Criminal Appeal No. 1348 of 2011 died. Therefore, the said appeal is being pressed only on behalf of the appellant-Jitendra Kumar Mishra @ Jittu.
5. The incident is of 08.06.2007 which probably took place around 08.45 pm in the night, in front of Machchu Hotel which is located near Shukla Hotel within the jurisdiction of Police Station Ghamapur, Jabalpur. In the said incident, one Pappu alias Rajendra Yadav had died. It is alleged that when he along with his friends Virendra Verma and Amit Jha was coming out of the Machchu Hotel, he was beaten and assaulted by all the four accused with knife and other weapons such as sickle and kesia.
6. The information of the alleged incident of beating and assaulting the deceased Pappu was given by one Virendra Kumar (PW-1) at about 09.00 PM to the brother of the deceased, i.e. Rajkumar Yadav and his mother Usha Rani Yadav. On receiving the said information, both Rajkumar Yadav and his mother rushed to the place of occurrence and found the deceased Pappu Yadav lying on road in a pool of blood. The mother of the deceased took the head of Pappu Yadav in her lap whereupon clothes were tied on his wounds by Rajkumar probably to stop bleeding. They took the deceased in a rickshaw to the Police Station Ghamapur. After Rajkumar Yadav (complainant) lodged the report (FIR exhibit P/2 at 09.30 PM), he took the deceased to the Victoria Hospital, Jabalpur for treatment where he was declared dead.
7. The prosecution is based upon the dying declaration of the deceased. The said dying declaration is in oral form. It was made by the deceased to his brother Rajkumar Yadav and mother Usha Rani Yadav who have reached the place of occurrence on being informed that the deceased was being beaten and assaulted by the accused persons near Machchu Hotel. The dying declaration as revealed by Rajkumar Yadav was made by the deceased on the asking of the mother as to what had happened? It is in response to the above query that the deceased stated that the Banti Isai, Manja, Ajay have assaulted him with knife, dagger and kasia respectively whereas Jittu caught both his hands. The above dying declaration is in the shape of an answer to the question asked by the mother of the deceased as to what had happened to him when she saw him lying on the road in a pool of blood.
8. The statement of the mother of the deceased PW-5 also contains a similar dying declaration of the deceased.
9. In addition to the above dying declaration, reliance has been placed upon the testimony of one of the eye witnesses, Rahul Yadav (PW-13). The said witness stated that the incident in which the deceased Pappu Yadav was killed had taken place between 08.30
(1) Oral dying declaration cannot be ex facie accepted to be correct unless it stands corroborated by any other cogent evidence.(2) Appellate court should be slow in interfering with conviction recor....
The principle of common intention under Section 34 IPC requires a prearranged plan for joint criminal liability; mere presence does not suffice if no common purpose is established.
The judgment establishes the importance of evaluating the admissibility and reliability of dying declarations in criminal cases, as well as the distinction between 'murder' and 'culpable homicide not....
Dying declarations can serve as the sole basis for conviction if they are consistent and credible; however, inconsistencies and lack of corroborative evidence can lead to reasonable doubt and acquitt....
An acquittal carries a double presumption of innocence, and the appellate court must not disturb findings unless clear error is established.
The reliability and evidentiary value of dying declarations, and the application of settled legal principles in determining their credibility.
A dying declaration can alone substantiate conviction if it instills confidence and is corroborated by credible evidences.
The central legal point established in the judgment is the need for caution in relying on dying declarations and the importance of establishing the credibility of circumstantial evidence in criminal ....
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