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High Court Of Madhya Pradesh
T. N. SINGH, S. K. DUBEY
MALKHAN SINGH - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Appeal 79 Of 1989
Decided On : 03/28/1990
CRIMINAL LAW - MURDER - EVIDENCE - ADMISSIBILITY - STATEMENT OF DECEASED RECORDED UNDER SECTION 299, CR.P.C. - IDENTITY OF ACCUSED NOT ESTABLISHED - CONVICTION BASED SOLELY ON SUCH STATEMENT UNSUSTAINABLE.
Fact of the Case:
The appellant was convicted of murder and attempted murder based on the statement of the deceased recorded under Section 299, Cr.P.C., and the testimonies of two witnesses who reached the spot after the incident.
Finding of the Court:
The court held that the conviction could not be sustained as the identity of the accused was not established, and the statement of the deceased was not admissible as a dying declaration or under Section 32(1) of the Evidence Act.
Issues: 1. Whether the statement of the deceased recorded under Section 299, Cr.P.C., was admissible in evidence against the appellant. 2. Whether the identity of the accused was established beyond reasonable doubt.
Ratio Decidendi: 1. The statement of the deceased recorded under Section 299, Cr.P.C., was not admissible in evidence against the appellant as the trial court failed to satisfy itself about the identity of the accused and his involvement in the crime. 2. The identity of the accused was not established beyond reasonable doubt as the prosecution failed to produce any evidence to link the appellant to the crime.
Final Decision: The appeal was allowed, the conviction and sentences were set aside, and the appellant was acquitted.
( 1 ) THE appellant Malkhan Singh was charged and tried for an offence under Section 302, Indian Penal Code, for committing the murder of Sudama son of Roopram in village Biloo, P. S. Umri, District Bhind, at about 11. 00 a. m. on 5-5-1976. He was also charged and tried for an offence under Section 307, IPC, for attempting to commit murder of Kailash Narayan and Phool Singh by gun-shot fires on the same date and place. Appellant was convicted under Section 302, IPC, and sentenced to life imprisonment. He was also convicted under Section 324, IPC, and sentenced to three years' rigorous, imprisonment for causing injuries to Kailash Narayan only both sentences to run concurrently. The trial Court acquitted the appellant of the charge under S. 307, IPC.
( 2 ) THE State has not preferred any appeal against the acquittal of the appellant of the charge under S. 307, IPC.
( 3 ) THE prosecution case in short is that the occurrence took place on 5-5-1976 between 10 and 11 a. m. in front of the house of Ramsnehi (PW. 7), where about 15-20 persons (villagers), some of whom were Kailash Sarpanch, Mewaram, Ranjit, Sudama, Jawahar, Kallu, were sitting. Ramsnehi (PW. 7) was drawing water from a well situated at about 70-75 yards away from his house, he heard gun-shot fires; while he was returning after taking a bucket of water, he saw the persons who were sitting, running helter-skelter to escape themselves and none was seen at his door expect Kailash Narayan, who was lying injured. Ramsnehi asked Kailash Narayan, who told that Malkhan Singh fired his sten gun, pellets of which have caused injuries on his right chest and right hand; Kailash Narayan also told that Sudama has also received gun-shot injuries and is lying on a cot in the room. Ramsnehi saw profuse bleeding from the chest of Sudama and Phool Singh lying injured. Ramsnehi took Kailash Narayan to Police Station, where a written report (Ext. P-5) signed by Kailash Narayan was lodged, on which an offence under Section 302/307, IPC, was registered at Crime No. 38/1976 (Ext. P-7 ). After investigation, a challan was filed against the accused; as the appellant/accused was absconding, in S. T. No. 13/1977 a statement of Kailash Narayan was recorded on 26-3-1977 u/s 299, Cr. P. C. The appellant, after his surrender, was tried for the charges under Ss. 302 and 307, IPC.
( 4 ) AT the trial, Ramsnehi (PW. 7) and Ranjit Singh (PW. 9), the eye-witnesses, were declared hostile. Shahjad (PW. 2) and Ramniwas (PW. 6) who reached the place of occurrence after the incident, stated that Kilash Narayan told them that Malkhan Singh has fired on him. Injured Kailash Narayan and Phool Singh could not be examined by the prosecution, as they died before the commencement of the trial. Prosecution produced at the trial the statement of Kailash Narayan recorded under Section 299, Cr. P. C. , on 29-3-1977 in S. T. No. 13 of 1977 which was admitted in evidence and marked as Ext. P-15. The trial Court on appreciation of evidence of witnesses, namely, Ramsnehi (PW. 7) and Ranjit (PW. 9), Shahjad (PW. 2) and Ramniwas (PW. 6) and Ext. P-15, the statement of Kailash Narayan recorded in S. T. No. 13/1977, convicted and sentenced the appellant as aforesaid.
( 5 ) SHRI J. P. Gupta, learned counsel for the appellant, challenged the conviction and contended that the first information report (Ext. P-5) cannot be treated as a dying declaration under Section 32 of the Evidence Act, nor the statement of Kailash Narayan, recorded in the earlier trial, in the absence of the accused, in the facts of the case, is admissible in evidence, as the identity of the accused is not established to connect the appellant with the commission of the offence of murder of Sudama. The other two witnesses, who are not the eye-witnesses of the incident, on reaching the spot after hearing the gun-shot fires, asked Kailash Narayan as to who fired the gun-shots, who then told that Malkhan Singh has fired on him; Malkhan Singh was not
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