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1998 Supreme(MP) 424
1998 (2) JLJ 350
Rajeev Gupta and R.P. Gupta, JJ.
Arjun Singh v. State of M.P.
Criminal Appeal No. 1237 of 1988; against the judgment of 3rd Additional
Sessions Judge, Durg, passed in Sessions Trial No. 37 of 1987;
Decided on 9.5.1998.
Ku. Neena Khera for appellant; R.A. Robertsan for State.
Headnote:(1) Penal Code, 1860 -- S. 302 -- offence of murder -- resting on three inconsistent dying declaration n cannot sustain --accused entitled to benefit of doubt [Paras 12 & 13
(2) Penal Code, 1860 -- S. 302 -- conviction under -- cannot be recorded on the basis of suspicion -- it cannot take place of ‘proof‘. [Para 13
(3) Evidence Act, 1872 -- S. 32 -- three inconsistent dying declarations -cannot be acted upon to base the conviction in murder case. [Para 12
(4) Evidence Act, 1872 -- S. 27 -- recovery of weapon of offence -- weapon not found stained with blood -- recovery is of no avail. [Para 13
¼1½ naM lafgrk] 1860 && /kkjk 302 && gR;k dk vijk/k & rhu vlaxr e`R;qdkfyd dFkuksa ij vk/kkfjr && ekU; ugha fd;k tk ldrk && vfHk;qDr lansg ds Qk;ns dk gdnkj gSA ¿ iSjk 12 rFkk 13À
¼2½ naM lafgrk] 1860 && /kkjk 302 && nks"kflf) && ‘kadk ds vk/kkj ij vfHkfyf[kr ugha dh tk ldrh && ;g **lcwr** dk LFkku ugah ys ldrkA ¿ iSjk 13À
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 32 && rhu vlaxr e`R;qdkfyd dFku && gR;k ds ekeys esa vk/kkjj cuk dj dkjZokbZ ugha dh tk ldrhA ¿ iSjk 12À
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 27 && vijk/k ds vk;q/k dk vfHkxzg.k && vk;q/k jDrjaftr ugha ik;k x;k && vfHkxzg.k O;FkZ gSA ¿ iSjk 13À
Gupta, J. -- 1. Appellant Arjun Singh has preferred this appeal against his conviction under section 302, of the Indian Penal Code (for short the IPC), and sentence of imprisonment for life, recorded by II1rd Additional Sessions Judge, Durg vide judgment dated 8.9.88, passed in Sessions Trial No. 37/87.
2. The factual matrix of the case, in Ii narrow compass, is that though Dhaniram (since deceased) and the four accused persons, including appellant Arjun Singh, were the members of one and the same gang of thieves, but there were some differences between them on account of the competitive feelings and distribution of the stolen property. At about 10.00 p.m. in the fateful night of 13.4.86, when Dhaniram was coming back to his house, the accused persons surrounded him near the 'Paan-Shop' of Mithu and belaboured him by means of 'ballam' and 'lath-is'. Dhaniram, with a view to save himself, tried to run away, but he was followed by the accused persons, who belaboured him again. Injured Dhaniram somehow reached his house and disclosed about the incident to his wife Vimla Bai. Dhaniram himself lodged the First Information Report at 3.30 a.m., on 13.4.86, at P.S. Chawni, District Durg giving rise to the registration of a case at Crime No. 373/86. Injured Dhaniram was sent to District Hospital, Durg for his treatment. On 13.4.86 itself, his dying declaration was recorded by R.K. Sharma, Naib Tehsildar, Durg. Dhaniram succumbed to his injuries on 20.4.86. After observing the necessary formalities of preparing inquest memo etc., his body was sent for post-mortem examination. The Autopsy Surgeon found two stiched wounds and two incised wounds on his body, as detailed in post-mortem report Ex. P-5, and in his opinion, the cause of his death were the injuries on his head region. During the course of investigation, all the four accused persons were arrested and in pursuance of the information given by them under section 27, of the Evidence Act, one ballam from Arjun Singh and one lat-hi each, from the remaining three accused persons, were seized. Though these articles were sent for chemical examination, but presence of blood on none of these articles was confirmed. After completing the investigation, Police Chawni charge-sheeted accused persons Arjun Singh, Mithu @ Mathew, Nandlal and Ashok Agrawal for the commission of the offence under section 302, of the IPC:
3. All the accused persons abjured their guilt and pleaded false implication to the charges, framed by the trial Court, under section 302, of the IPC.
4. In its endeavour to establish the charge of murder against the accused persons, the prosecution banked on the evidence of 14 witnesses, examined at the trial. The accused persons chose not to examine any witness in their defence. On the ocular and medical evidence on record, the trial Court found it proved that deceased Dhaniram had sustained multiple external injuries, on 13.4.86, and had died a homicidal death on 20.4.86. Though there was no eye witness account available in the case, for connecting the accused persons with the commission of murder of Dhaniram, but relying upon the three dying declarations of deceased Dhaniram, the trial Court found accused Arjun Singh guilty of commission of his murder and, therefore, convicted and sentenced him as mentioned above. The evidence led by the prosecution, against the three remaining accused persons; Mithu @ Mathew, Nandlal and Ashok Agrawal, was not found sufficient for establishing the charge of murder against them and, therefore, they were acquitted of the above charge.
5. Ku. Neena Khera, the learned counsel for the appellant, contended that the trial Court has erred in recording the appellant's conviction on the evidence of dying declarations alone, as the three dying declarations are not consistent and they do not pin down the identity of the assailant of deceased Dhaniram as that of appellant Arjun Singh. Shri R.A. Robertson, the learned Panel Lawyer, on the other hand, v
