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2008 (2) JLJ 152
Subhash Samvatsar and A.K. Shrivastava, JJ.
State of M.P. v. Ashok and another
Criminal Appeal No. 180 of 1997 (Gwalior): against the judgment of IV Additional Sessions Judge, Gwalior, passed in Sessions Trial No. 228 of 1998;
Decided on 26.3.2008.
One girl of the locality came and informed Laxmi Bai at her home that some persons were assaulting the deceased by knives, as a result of which said Laxmi Bai rushed towards the place of occurrence which is situated nearby a Jain Temple at Gendewali Sadak. The deceased who was the father-in-law of Laxmi Bai was lying near the door of temple and he gave oral dying declaration to Laxmi Bai that respondent had assaulted him. It is the further case of prosecution that respondent No. 2-Dewanand was having a knife and respondent No. 1- Ashok was having a hockey stick. Respondent No. 2-Dewanand has dealt the blows of knife to the deceased. [Para 3
Held : According to the doctor, death was due to shock and haemorrhage as a result of thoracic injury caused by sharp penetrating object. On going through injury No. xii and other injuries, we find that on thoracic region there were injuries of sharp and penetrating object like knife. The deceased sustained as many as eight injuries of knife and, therefore, looking to the nature of injuries, we are of the view that respondent No. 2-Dewanand has committed the offence under section 302, IPC. 2000 (2) JLJ 168 (SC) followed. [Para 20
(2) Evidence Act, 1872 -- S. 32 -- oral dying declaration given by deceased to his near relative -- names of assailents disclosed --fact of oral dying declaration mentioned in promptly lodged FIR -- is reliable. 1992 JLJ 561 (SC) followed. [Paras 16 to 17
(3) Evidence Act, 1872 -- S. 60 -- Criminal P.C., 1973 -- Ss. 154 and 161 -- witness not firm on point of causing injuries -- her presence not mentioned in FIR and police statement -- not an eye witness. [Para 14
(4) Evidence Act, 1872 -- S. 32 and 60 -- witness not found an eye witness -- still her evidence of dying declaration can be acted upon -- same cannot be discarded on the ground of her not being an eye witness. AIR 2001 SC 2503, AIR 2003 SC 507, AIR 2003 SC 854 and AIR 1957 SC 614 distinguished. [Para 22
¼1½ naM lafgrk] 1860& &/kkjk 302& &e`rd ij pkdw ds vkB çgkj gq, ftuesa o{kh; LFky Hkh lfEefyr& &gRk dk vijk/k dkfjr gqvkA
eksgYys dks ,d dU;k us y{ehckbZ ds fuokl ij vkdj lwpuk nh fd dqN O;fDr e`rd ij pkdqvksa ls çgkj dj jgs gSa] ftlds ifj.kkeLo:i y{ehckbZ ?kVuk LFky ij igq¡ph tks fd xsaMsokyh lM+d ij ,d tSu eafnj ds lehi fLFkr gSA e`rd tks y{ehckbZ dk ‘olqj Fkk] eafnj ds }kj ij iM+k gqvk Fkk rFkk mlus y{ehckbZ dks ekSf[kd e`R;qdkfyd dFku fn;k fd çR;fFkZ;ksa us ml ij geyk fd;k FkkA vfHk;kstu dk vfrfjDr i{kdFku gS fd çR;FkhZ Ø- 2&nsokuan ds ikl pkdw Fkk rFkk çR;FkhZ Ø- 1&v‘kksd ds ikl gkdh fLVd FkhA çR;FkhZ Ø-2&nsokuan us e`rd ij pkdw ls çgkj fd,A ¼iSjk 2½
vfHkfu/kkZfjr % MkDVj ds vuqlkj] /kkjnkj] Hksnudkjh oLrq ds dkj.k o{kh; {kfr ds ifj.kkeLo:i ç/kkr vkSj jDrL=ko ds dkj.k e`R;q gqbZA {kfr Ø- 12 rFkk vU; {kfr;ksa dks ns[krs gq, geus ik;k fd o{kh; LFky ij pkdw ds leku /kkjnkj rFkk Hksnudkjh {kfr;k¡ FkhA e`rd dks pkdw dh vkB {kfr;k¡ gqbZ rFkk blfy,] {kfr;k¡ ds Lo:i dh ns[krs gq,] gekjh ;g jk; gS fd çR;FkhZ Ø- 2 nsokuan us Hkkjrh; naM lafgrk dh /kkjk 302 ds v/khu vijk/k fd;k gSA 2000 ¼2½ ts ,y ts 168 ¼mPpre U;k½ vuqlfjrA ¼iSjk 20½
¼2½ lk{; vf/kfu;e] 1872& &/kkjk 32& &e`rd us vius fudV laca/kh dks ekSf[kd e`R;qdkfyd dFku fn;k& &geykojksa ds uke çdV fd,& &ekSf[kd e`R;qdkfyd dFku dk rF; dky nkf[ky çFke bfÙkyk fjiksVZ esa mfYyf[kr& &voyacuh gSA 1992 ts ,y ts 561 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 15 ,oa 17½
¼3½ lk{; vf/kfu;e] 1872& &/kkjk 60& &naM çfØ;k lafgrk] 1973& &/kkjk 154 rFkk 161& &{kfr;k¡ dkfjr gksus ds fcanq ij lk{kh n`<+ ugha& &çFke bfÙkyk fjiksVZ rFkk iqfyl dFku esa mldh mifLFkfr mfYyf[kr ugha& &çR;{kn‘khZ lk{kh ugha gSA ¼iSjk 14½
¼4½ lk{; vf/kfu;e] 1872& &/kkjk 32 rFkk 60& &lk{kh çR;{kn‘khZ lk{kh ugha ikbZ xbZ& &rc Hkh mlds e`R;qdkfyd dFku ij ls dk;Zokgh dh tk ldrh gS& &mlds çR;{kn‘khZ lk{kh ugha gksus ds vk/kkj ij og R;Dr ugha fd;k tk ldrkA , vkb vkj 2001 ,l lh 2503] , vkb vkj 2003 ,l lh 507] , vkb vkj 2003 ,l lh 854 rFkk , vkb vkj 1957 ,l lh 614 çHksfnrA ¼iSjk 22½
Shrivastava, J. -- 1. Feeling aggrieved by the judgment of absolvitur passed by learned 4th Additional Sessions Judge, Gwalior in Sessions Trial No. 228/1992 dated 26.11.1993 acquitting the respondents for the offence punishable under section 302/34, IPC, the State of Madhya Pradesh has preferred this appeal under section 378 (3) of the Code of Criminal Pro,cedure,1973.
2. In brief the case of prosecution is that on 22.6.1992 at 8:30 in the morning Jagdish who is a labour went to his work place. After departure of Jagdish his father Chunnilal (hereinafter referred to as 'the deceased') also proceeded to his work place. After some time, one girl of the locality came and informed Laxmi Bai at her home that some persons were assaulting the deceased by knives, as a result of which said Laxmi Bai rushed towards the place of occurrence which is situated nearby a Jain Temple at Gendewali Sadak. The deceased who was the father-in-law of Laxmi Bai was lying near the door of temple and he gave oral dying declaration to Laxmi Bai that respondent had assaulted him. It is the further case of prosecution that respondent No. 2-Dewanand was having a knife and respondent No. 1Ashok was having a hockey stick. Respondent No. 2-Dewanand has dealt the blows of knife to the deceased. The blood was oozing from the abdominal region of the deceased and it is said that on account of some dispute of partition, the incident had taken place. It is the further case of prosecution that by making the point of partition, earlier also respondent No'. 2-Dewanand assaulted Jagdish by knife and on account of enmity, they have caused injuries by knife and hockey stick resulting into the death of deceased at the spot.
3. Laxmi Bai lodged first information report in Police Station, Janakganj. On lodging of the first information report, criminal was triggered off and set in motion. After registering the case, the investigating agency sent the deceased to the hospital; arrived at the spot and prepared the spot map; recorded the statement of the witnesses; arrested the accused persons and after completion of the investigation, submitted a charge sheet in the competent Court which, on its turn, committed the case to the Court of Session and from where it was received by the trial c.0urt for its trial.
4. Both the respondents were charged under section 302, IPC and in the alternative they were charged under section 302/34, IPC. Needless to emphasis, both the accused persons abjured their guilt and pleaded complete innocence.
5. In order to prove the charges, prosecution examined as many as 11 witnesses and placed Exs. P.1 to P-11, the documents on record. The defence of the respondents is of false implication and the same defence they set forth in their statement recorded under section 313, CrPC, however, they did not choose to examine any witness in their defence.
6. Learned trial Judge, on the basis of the evidence placed on record, came to hold that since Laxmi Bai was cited as an eye witness and from her testimony, it is not proved that she has seen the incident, therefore, learned trial Court had acquitted the respondents from the charges by the impugned judgment.
7. In this manner, present appeal has been filed by the State of Madhya Pradesh.
8. The contention of Shri Bhadoriya, learned Public Prosecutor, is that learned trial Court erred in law in holding that Laxmi Bai (PW 1) has not seen the incident and since she is an eye witness and on the basis of her unimpeachable evidence the offence committed by the respondents has been duly proved, hence learned trial Court erred in law in acquitting the respondents. Further it has been contended by learned Public Prosecutor that even if it is held that PW 1-Laxmi Bai has not seen the incident, but it is borne out from her testimony as well as from the FIR that deceased gave oral dying declaration to her, therefore, it would be sufficient evidence against the respondents holding them to be guilty for the charges levelle
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