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RAJASTHAN HIGH COURT (DB)
Rajendra Saxena and R.R. Yadav. JJ
Bashir Shah & Ors. - Appellants
versus
State of Rajasthan - Respondent
D.B. Criminal Appeal No. 386 of 1991
Decided on 18.3.1994
Counsel for the parties:
For the Appellants - Bhagwati Prasad. For the Respondent - V.R. Mehta, P.P.
IMPORTANT POINT
Conviction solely based on the dying declaration recorded by the investigating officer without following mandatory provisions as contemplated under rule 6.22 of the Rajasthan Police Rules, is no-legally sustainable.
Headnote:(i) Indian Penal Code, 1860 - Section 302 Rajasthan Police Rules, 1965 - Dying Declaration recorded by Head Constable - Conviction solely based on; - Not sustainable - Test of reliability of the dying declaration - Rules of 1965 are just, fair and reasonable - Its strict compliance in letter and spirit must be ensured wherever dying declaration is taken to be sole basis of conviction and sentence - Dying declaration recorded by investigating officers should always be discouraged - Deceased was an old man of 60 years - He had received 24 grievous injuries - He cannot be said to be capable physically and mentally to make a statement - Conviction not legally sustainable.
Held: It is pertinent to mention here that the learned Addl. Sessions Judge held in his judgment that P.W. 11 Manikant Head-constable is an independent witness having no grudge to falsely implicate the present accused-appellants, therefore, his statement should be believed. In this regard, we do not agree with the finding recorded by the learned Addl. Sessions Judge, inasmuch as, the aforesaid appreciation of oral and documentary evidence has been assessed by the learned Addl. Sessions Judge against the preposition of law laid down their Lordships of the Supreme Court in para 11 of the case of Munnu Raja (supra), wherein, it is clearly held that the investigating officers are always interested in the success of the investigation, hence, they cannot be said to be independent witnesses and the dying declaration recorded by them should always be discouraged. According to their Lordships view, held in Munnu Raja's case (supra), the investigating officer is required to requisition the services of a Magistrate for recording the dying declaration. Since in the instant case, no effort was made to requisition the services of a Magistrate to record the dying declaration of deceased Najaru Shah, therefore, the veracity of the statement of P.W. 11 Manikant and so-called dying declaration (Ex. P.20) becomes suspicious. (Para 28)
(ii) Indian Penal Code, 1860 - Section 302 Rajasthan Police Rules, 1965 - Conviction U/S 302 - Appeal- Dying Declaration recorded by Head Constable, Investigating Officer - Noncompliance of rules of 1965 - No corroboration - Eye witness not able to identify any of the accused persons - I.O. has not shown the place from where the eyewitnesses alleged to have seen the assailants assaulting deceased - Omission to record statements of eye-witnesses U/S 161 Cr. P.C. on the same day - Inconsistencies in prosecution evidence - Eye-witnesses rightly disbelieved - Conviction not sustainable.
(Paras 33, 34, & 36)
Result: Appeal allowed.
JUDGMENT
R.R. Yadav, J. - This appeal is preferred against the judgment dated 27.11.1991 passed by the learned Additional Sessions Judge, Chittorgarh in Sessions Case No. 22 of 1991, by which, he found the appellants guilty of offence under Sec. 302 I.P.C. and sentenced each of them to life imprisonment and a fine of Rs. 500/- and in default to further undergo R.I. for six months.
2. According to the prosecution story, it is alleged that on 14.8.1987 at 1 p.m., one Karnal Prakash Nakedar, Naka No. 7, Chhoti Sadri Road, Nimbahera sent an information on phone to police station, Nimbahera that 4 - 5 persons were beating one person near the Naka and necessary steps be taken. The said information was recorded in the Rojnamcha as Ex. P. 19. Thereupon ASI Laxmilal and Head-constable Manikant accompanied with the police force proceeded towards to the said Naka, where it was transpired that the injured was shifted to the hospital and that the assailants had fled away towards Ranikhera, ASI Laxmilal with police force went in search of the accused persons. Head - constable Manikant proceeded to see the injured in the hospital, where he found that the injured Najaru Shah S/o Alaharakh Shah Fakir r/o village Ranikhera was being medically treated. On oral enquiry, injured Najaru Shah informed the Head-constable, named-above, that he had enmity with accused Bashir, Roshan and Tufail, that while he was going on cycle for prayer (Namaz) towards Nimbahera, Bashii-, Roshan, Tufail and Iqbal, who were hiding themselves behind Chungi Naka of Chhoti Sadari appeared suddenly and started belabouring him with Dharia and Lathis, that he fell down from his cycle yet they continued to beat him and that he received injuries on his head, leg, hand and chest. He further informed that when the people of the vicinity ran to save him, then, Bashir pointed his gun and that the assailants after being satisfied that he was dead, ran away. He was brought to the hospital on "Thela" by Babu Shah and one more person and that if there were any more assailants then he would not be able to identify them.
3. Manikant, Head-constable recorded the statement of the injured Najaru Shah and examined the injuries on his person. He found three the dying declaration of deceased Najaru Shah, therefore, the veracity of the statement of P.W. 11 Manikant and so - called dying declaration (Ex. P.20) becomes suspicious. (para 28)
(ii) Indian Penal Code, 1860 - Section 302 Rajasthan Police Rules, 1965 - Conviction U/S 302 - Appeal - Dying Declaration recorded by Head Constable, Investigating Officer - Noncompliance of rules of 1965 - No corroboration - Eye witness not able to identify any of the accused persons - I.O. has not shown the place from where the eyewitnesses alleged to have seen the assailants assaulting deceased - Omission to record statements of eye -witnesses U/S 161 Cr. P.C. on the same day - Inconsistencies in prosecution evidence – Eye - witnesses rightly disbelieved - Conviction not sustainable.
(Paras 33, 34, & 36)
Result: Appeal allowed.
Cases referred:
Khushal Rao v. State of Bombay; A.I.R. 1958 S.C. 22.
Munnu Raja & Anr. v. State of M.P.; A.I.R. 1976 S.C. 2199.
Ramawati Devi v. State of Bihar; A.I.R.1983 S.C. 164.
Navratan Mal @ Babu v. State of Rajasthan; A.I.R. 1985 Cr. L.R. 644 (Raj.).
State of Rajasthan v. Smt. Lichma Devi; 1986 (1) W.L.N. 106.
Kishore v. State of Rajasthan; 1988 Cr. L.R. 376 (Raj.).
Pratap Sing & Ors. v. State of Raj; 1989 (1) R.L.R. 594.
Counsel for the parties:
For the Appellants - Bhagwati Prasad. For the Respondent - V.R. Mehta, P.P.
IMPORTANT POINT
Conviction solely based on the dying declaration recorded by the investigating officer without following mandatory provisions as contemplated under rule 6.22 of the Rajasthan Police Rules, is no-legally sustainable.
JUDGMENT
R.R. Yadav, J. - This appeal is preferred against the judgment dated 27.11.1991 passed by the learned Additional Sessions Judge, Chittorgarh in Sessions Case No. 22 of 199
