Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Raj) 2569

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dalip Singh, K.S.Chaudhari, JJ.
Hariya & Ors. - Appellant
Versus
State of Rajasthan Through P.P. - Respondent
D.B. Criminal Appeal Nos. 455 of 2003 and 226 of 2003.
Decided On : 17-12-2009

For the Accused-Appellant Hariya:Biri Singh Sinsinwar, Harendra Singh Sinsinwar and Rajesh Choudhary, Advocates.
For the Accused-Appellant Dhanpal:Sanjay Mehrishi, Tarun Jain, Harsh Kulshretha and Timan Singh, Advocates.
For the State: J.R. Bijarnia and Public Prosecutor.

The court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statement.

Headnote:
CRIMINAL - Dying Declaration - FIR - Delay in sending FIR to Magistrate - FSL Report - Identification Parade - Eye Witnesses - Medical Evidence - Contradictions in Statements - Benefit of Doubt - Appeal Allowed.
Fact of the Case:

The appellants were convicted of murder under Section 302 IPC and sentenced to life imprisonment. They appealed against the conviction, arguing that the dying declaration was not reliable, the FIR was suspicious, the medical evidence did not corroborate the oral evidence, and there were contradictions in the statements of witnesses. The prosecution argued that the dying declaration, coupled with the oral testimony of the eye witnesses and the postmortem report, proved the case beyond reasonable doubt.
Finding of the Court:

The court found that the dying declaration was not reliable as it was not recorded in the presence of the deceased's father, the doctor who certified the patient as capable of giving the statement was not examined by the prosecution, and there was a discrepancy between the FIR and the dying declaration regarding the time of the incident. The court also found that the FIR was suspicious as it was recorded after a delay of four days and the Investigating Officer did not provide any explanation for the delay. The court further found that the FSL report could not be relied on as the swords recovered from the accused were not properly marked and there was a delay of 13 months in sending the articles for chemical examination. The court also found that the identification parade was not reliable as it was conducted after the accused had already been shown to the witnesses. The court also found that the medical evidence did not corroborate the oral evidence as there were contradictions between the injuries described in the postmortem report and the injuries described by the witnesses. The court also found that there were contradictions in the statements of the witnesses, which cast doubt on the prosecution's case.
Issues: 1. Whether the dying declaration was reliable. 2. Whether the FIR was suspicious. 3. Whether the FSL report could be relied on. 4. Whether the identification parade was reliable. 5. Whether the medical evidence corroborated the oral evidence. 6. Whether there were contradictions in the statements of the witnesses.
Ratio Decidendi: The court held that the dying declaration was not reliable as it was not recorded in the presence of the deceased's father, the doctor who certified the patient as capable of giving the statement was not examined by the prosecution, and there was a discrepancy between the FIR and the dying declaration regarding the time of the incident. The court also held that the FIR was suspicious as it was recorded after a delay of four days and the Investigating Officer did not provide any explanation for the delay. The court further held that the FSL report could not be relied on as the swords recovered from the accused were not properly marked and there was a delay of 13 months in sending the articles for chemical examination. The court also held that the identification parade was not reliable as it was conducted after the accused had already been shown to the witnesses. The court also held that the medical evidence did not corroborate the oral evidence as there were contradictions between the injuries described in the postmortem report and the injuries described by the witnesses. The court also held that there were contradictions in the statements of the witnesses, which cast doubt on the prosecution's case.
Final Decision: The court allowed the appeals and set aside the conviction and sentence of the accused.

JUDGMENT

1. - These appeals have been filed against the judgment dated 21.1.2003 passed by Additional Sessions Judge (Fast Track) No.1, Kota in Sessions Case No.89/2001 by which he convicted accused appellant-Hariya under Section 302 IPC and accused-appellant-Dhanpal under Section 302/34 IPC and sentenced each of them to undergo life imprisonment and fine of Rs. 1,000/- and in default of payment of fine to undergo six months simple imprisonment and acquitted them under Section 148, 325/149, 324/149, 323 IPC and acquitted other 9 accused-persons under Section 148, 302/149, 325/149, 324/149 and 323 IPC. Both appeals arise out of same judgment hence, decided by common judgment.

2. Brief facts of the prosecution case are that injured Amarjeet Singh son of Gurudev Singh gave Parcha Bayan Ex.P/37 on 8.10.89 at 11.20 a.m. and alleged that at 10.30 a.m. he alongwith Amarjeet Singh and Hari Singh was coming and as they reached near the house of Roop Chand Dhakad 10 to 15 persons armed with Gandasa, sword came out from the house of Roop Chand and accused-Dhanpal, brother of Roop Chand, inflicted injury with sword (Kripan) on his head and accused-Hariya son of Prahlad Patel stabbed sword in his abdomen and one of the co-accused caused stab injury with Sariya on his right thigh and other assailants inflicted blows with lathi and sariya. He further narrated that injuries with sariya and sword were also inflicted by assailants on the body of his companion Amarjeet Singh and Hari Singh and the tyre of his motorcycle /was cut by kulhari blow and the motorcycle is lying on the spot. On hue and cry his younger brother Ranjeet Singh and servant Babulal came on the spot. Dhanpal and Hariya ran away from the spot presuming them to have died. He further narrated that he has quarrel with both accused-persons in relation to irrigation of the crop in the land.

3. On this parcha bayan case under Section 147,148,341,307,149 IPC was registered and during investigation injured Amarjeet Singh son of Shri Gurudev Singh died, so offence under Section 302 IPC was added and after completion of investigation challan under Section 148,302,307,326,325,324,323,427,149 IPC and Section 4/25 Arms Act was filed against the accused-appellants and other 9 accused-persons in the Court of Additional Munsiff & Judicial Magistrate No.2 (South), Kota. The case was committed to the Court of Sessions Judge, Kota which was transferred to the Court of Additional Sessions Judge No.1, Kota where charges under Section 148,302/149,325/149,324/149,323 IPC were framed against the appellants and other 9 accused persons to which they denied. During trial the case was transferred to the Court of Additional Sessions Judge No.5, Kota and from there case was transferred to the Court of Additional Sessions Judge (Fast Track) No.1, Kota. Prosecution examined 17 witnesses and after recording statements of accused-persons under Section 313 Cr.P.C. the defence examined one witness. After hearing arguments the accused-appellants were convicted and sentenced as aforesaid and other accused-persons were acquitted.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the appellants argued that dying declaration is not a reliable document and further submitted that FIR itself is a suspicious document and prosecution has not submitted any explanation for delay in sending FIR to the Court and further submitted that medical evidence does not corroborate the oral evidence and looking to the contradictions in the statement of witnesses no case is made out against the accused-appellants particularly when other co-accused have been acquitted by the trial Court by disbelieving statement of witnesses and the identification memo and the learned trial Court has committed error in convicting the accused-appellants hence, appeal may be accepted and accused-appellants may be acquitted of the charges levelled against them.

6. On the other hand Learned Public Prosecutor argued that the d

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2009 Supreme(Raj) 2569

RAJASTHAN HIGH COURT AT JAIPUR BENCHDalip Singh, K.S.Chaudhari, JJ.Hariya & Ors. - AppellantVersusState of Rajasthan Through P.P. - RespondentD.B. Criminal Appeal Nos. 455 of 2003 and 226 of 2003.Decided On : 17-12-2009

The court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition mentally and physically to make such statement.

Cases Referred (3)

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Dalip Singh, K.S.Chaudhari, JJ.
Hariya & Ors. - Appellant
Versus
State of Rajasthan Through P.P. - Respondent
D.B. Criminal Appeal Nos. 455 of 2003 and 226 of 2003.
Decided On : 17-12-2009