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IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Sujoy Paul and Shailendra Shukla, JJ.
Kuldeep Choudhary @ Kuldeep Yadav & Another v. State of M.P.
Criminal Appeal No. 585 of 2014 (Indore): against the judgment and sentence dated 5.4.2014 passed by the Additional Sessions Judge, Badwaha, District Khargone in Sessions Trial No. 50/2011; Decided on 26.2.2021
(1) Evidence Act, 1872 -- S. 60 -- secondary evidence -- photocopy can be treated as secondary evidence provided oneof the clauses/conditions enumerated in S. 65 are satisfied -- in absence thereof, photocopy cannot betreated as secondary evidence -- prosecution has not satisfied said requirement -- Court below erred in accepting photocopy assecondary evidence. (2009) 6 SCC 681 and (2013) 2 SCC 114 followed. [Para 16]
(2) Evidence Act, 1872 -- S. 32 (1) -- dying declaration -- if injury or transaction cannot be treated to be a reason for causing death, statement of injured/declarant does not fall within meaning of S. 32(1). 1994 MPLJ 862 relied on. (2019) 8 SCC 779 referred to. [Para 22]
(3) Penal Code, 1860 -- Ss. 302/149, 201/149 and 147 -- defence that deceased was not injured when hospitalised inBadwaha -- injuries found later atIndore not fatal and not on vital parts -- held -- if injuries mentioned in "external examination" alone aretaken into account, appellants certainly deserve to succeed - however,injuries found on "internal examination" cannot beignored - injury onfrontal region of brain -- could be detected only upon opening skull duringpost -- mortem -- could havebeen a reason for death -- appeal fails. (1998) 5 SCC 150 followed. (1994) Supp. 1SCC 498 and 994 MPLJ 862 distinguished. [Para 24]
(4) Evidence Act, 1872 -- S. 45 -- normally expert's opinion must berespected -- but it is not gospel truth which needs to be swallowed without examining its truth fulness and veracity. [Para 26]
(5) Evidence Act, 1872 -- S.45 -- in Court statement, doctor assigned cardiovascular failure as singular reason of death -- stated that there was no element of beating by stick etc.-- in his written opinion in post-mortem report, he specifically mentioned another reason of death, i.e., injuries caused by hard and blunt object -- did not mention this reason in Court statement -- rightly disbelieved. (1992) 4 SCC 69 and (2012) 8 SCC 263 followed. [Para 26]
(6) Penal Code, 1860 -- Ss. 302/149, 201/149 and 147 -- Evidence Act, 1872 -- S. 32 (1) -- dying declaration -- credibility -- doctors did not state that during entire period of hospitalization, deceased continuously remained unconscious -- one doctor opined on basis of certain medical documents that deceased was unconscious -- those medical documents not exhibited and proved by prosecution -- his statement not worthy of credence -- finding that doctors do not remain with patient during entire period of hospitalization but family members do -- is a plausible view -- statement of PW-4 that during hospitalization,deceased gained consciousness and informed him, his wife and son about assault by appellants -- cannot be doubted -- such oral dying declaration can be sole basis for holding appellants guilty. AIR 2009 SC 1487, (2008) 2 SCC 516 and (2005) 9 SCC 113 followed. 2008 (3) MPHT 194 relied on. [Paras 30 & 31]
(7) Criminal P.C. 1973 -- S.374 -- appeal -- no illegality or perversity in impugned judgment -- prosecution established its case beyond reasonable doubt -- Court below rightly appreciated evidence and took plausible view -- does not warrant interference. (2009) 8 SCC 796 and (2018) 14 SCC 513 followed. [Para 32]
¼1½ lk{; vfèkfu;e] 1872 & /kkjk 60 & f}rh;d lk{; & /kkjk 65 esa Áxf.kr [kaMks@'krksZ esa ls ,d dh iwfrZ gks rks Nk;k Áfr dks f}rh;d lk{; ekuk tk ldrk gS & mld¢ vÒko esa Nk;kçfr d¨ f}rh;d lk{; ugha ekuk tk ldrk & vfÒ;¨tui{k us mDr vis{kk dh iwfrZ ugha dh & fupys U;k;ky; us Nk;kçfr d¨ f}rh;d lk{; d¢ :i esa Lohdkj dj xyrh dhA ¼2009½ 6 ,l lh lh 681 rFkk ¼2013½ 2 ,l lh lh 114 vuqlfjrA ¼iSjk 16½
¼2½ lk{; vfèkfu;e] 1972 & èkkjk 32 ¼1½ e`R;qdkfyd dFku & ;fn {kfr ;k laO;ogkj d¨ e`R;q dkfjr djus dk dkj.k ugha ekuk tk ldrk r¨ {kfrxzLr@Ĩ"k.kkdrkZ dk dFku èkkjk 32 ¼1½ d¢ vFkkZrxZr ugha vkrkA 1994 ,e ih ,y ts 862 voyafcrA ¼2019½ 8 ,l lh lh 779 fufnZ"VA ¼iSjk 22½
¼3½ naM lafgrk] 1860 & èkkjk 302@149] 201@149 rFkk 147 & çfrj{kk fd cM+okgk esa vLirky esa ÒrÊ fd, tkus d¢ le; e`rd {kfrxzLr ugha Fkk & ckn esa ban©j esa ikà xà {kfr;k¡ Äkrd ugha v©j egRoiw.kZ vax ij ugha & vfÒfuèkkZfjr & ;fn d¢oy ^^ckg~; ijh{k.k** esa mfYyf[kr {kfr;¨a ij è;ku fn;k tk, r¨ fuf'pr :i ls vihykFkÊx.k lQy g¨us d¢ ik= gSa & rFkkfi] ^^vkarfjd ijh{k.k** djus ij ikà xà {kfr;¨a dh mis{kk ugha dh tk ldrh & efLr"d d¢ vxz Òkx ij {kfr & 'ko ijh{k.k d¢ n©jku diky [k¨yus ij gh irk py ldk & e`R;q dk dkj.k g¨ ldrh Fkh & vihy vlQyA ¼1998½ 5 ,l lh lh 150 vuqlfjrA ¼1994½ lIyhŒ 1 ,l lh lh 498 rFkk 1994 ,e ih ,y ts 862 çÒsfnrA ¼iSjk 24½
¼4½ lk{; vfèkfu;e] 1872 & èkkjk 45 & lkekU;r% fo'ks"kK dh jk; dk vknj fd;k gh tkuk pkfg, & ijarq og osn okD; ugha ftl ij] mldh lPpkà v©j lR;rk ij[ks fcuk gh] vk¡[k ew¡n dj fo'okl djuk vko';d g¨A ¼iSjk 26½
¼5½ lk{; vf/kfu;e] 1872 & /kkjk 45 & U;k;ky; dFku esa fpfdRld us e`R;q dk ,dek= dkj.k gn~;k?kkr crk;k & dgk fd ykBh vkfn ls ihVs tkus dk dksbZ rRo ugha Fkk & 'ko ijh{k.k fjiksVZ esa viuh fyf[kr jk; esa mlus e`R;q ds ,d vU; dkj.k dk fofufnZ"V mYys[k fd;k] vFkkZr~ dBksj vkSj dqan oLrq ls dkfjr {kfr;k¡ & U;k;ky; dFku esa bl dkj.k dk mYys[k ugha fd;k & Bhd gh vfo'okl fd;k x;kA ¼1992½ 4 ,l lh lh 69 rFkk ¼2012½ 8 ,l lh lh 263 vuqlfjrA ¼iSjk 26½
¼6½ naM lafgrk] 1860 & /kkjk 302@149@201@149 rFkk 147 & lk{; vf/kfu;e] 1872 & /kkjk 32¼1½ e`R;qdkfyd dFku & fo'oluh;rk & fpfdRldksa us ugha dgk fd vLirky esa HkrhZ jgus dh laiw.kZ vof/k ds nkSjku e`rd fujarj vpsr jgk & ,d fpfdRld us dfri; fpfdRlh; nLrkostksa ds vk/kkj ij jk; nh fd e`rd vpsr Fkk & og fpfdRld nLrkost vfHk;kstui{k }kjk Ánf'kZr vkSj lkfcr ugha fd, x, & mldk dFku fo'okl ;ksX; ugha & ;g fu"d"kZ fd vLirky esa HkrhZ dh laiw.kZ vof/k esa fpfdRld jksxh ds lkFk ugha jgrs] vfirq ifjokj ds lnL; vo'; jgrs gSa & laHkkO; n`f"Vdks.k gS & vlkŒ 4 dk dFku fd vLirky esa HkrhZ jgus ds nkSjku e`rd lpsr gqvk rFkk vihykFkhZx.k }kjk x, x, geys ds ckjs esa mls] mldh iRuh vkSj iq= dks lwfpr fd;k & lansg ugha fd;k tk ldrk & ,slk ekSf[kd e`R;qdkfyd dFku vihykFkhZx.k dks nks"kh vfHkfu/kkZfjr djus dk ,dek= vk/kkj gks ldrk gSA , vkb vkj 2009 ,l lh 1487] ¼2008½ 2 ,l lh lh 516 rFkk ¼2005½ 9 ,l lh lh 113 vuqlfjrA 2008 ¼3½ ,e ih ,p Vh 194 voyafcrA ¼iSjk 30 ,oa 31½
¼7½ naM ÁfØ;k lafgrk] 1973 & /kkjk 374 & vihy & vkf{kIr fu.kZ; esa dksbZ voS/krk ;k foi;ZLrrk ugha & vfHk;kstu us viuk i{kdFku ;qfDr;qDr lansg ls ijs LFkkfir fd;k & fupys U;k;ky; us lk{; dk lgh ewY;kadu fd;k rFkk laHkkO; n`f"Vdks.k viuk;k & gLr{ksi okaNuh; ugha ¼2009½ 8 ,l lh lh 796 rFkk ¼2018½ 14 ,l lh lh 513 vuqlfjrA ¼iSjk 32½
JUDGMENT
Paul, J. -- 1. In this appeal filed u/S.374 of Code of Criminal Procedure (Cr.P.C.) the appellants have challenged the judgment dated 5.4.2014 passed by Addl.Sessions Judge, Badwahaa, District Khargone in ST No.50/2011 whereby convicting and sentencing the appellants as under:-
| Name of accused | Section | Punishment | Default sentence |
| Kuldeep Choudhary @ Kuldeep Yadav | 147 of IPC | RI for one year |
|
| 302/149 IPC | RI for life with fine of Rs. 10,000 | One year RI | |
| 201/149 IPC | RI for five years with fine of Rs. 5,000 | Six months RI | |
| 25(1-b) of Arms Act | One year RI with fine of Rs. 500 | Three months RI | |
| Yougesh @ Bobysingh | 147 of IPC | One year RI |
|
| 302/149 IPC | RI for the with fine of Rs. 10,000 | One year RI | |
| 201/149 IPC | Five years RI with fine of Rs. 5,000 | Six months RI |
Background Facts:-
2. In short, the relevant facts which have given rise to this matter are that deceased Omprakash was working as Salesman in the liquor shop of Rinku Bhatia situated at Khargone bus station. On 27.10.2010 at around 7.00 PM Mahendra was sitting in the shop whereas another co-accused Sanjay was unloading the liquor boxes from a vehicle. The appellant Kuldeep and Baby Singh @ Yogesh Chouhan came in a vehicle with driver and two other persons in the shop and forcibly took Mahendra with them. Kuldeep assaulted Mahendra with the butt of a revolver on his head. In the said vehicle they took him towards Kasrawad road. Mahendra was beaten by accused persons by sticks, kicks and fists. Mahendra found that another salesman of liquor shop Omprakash was sitting and weeping in the said vehicle. Omprakash was also assaulted by sticks, slaps and fists. After some time, Mahendra became unconscious. When Mahendra gained consciousness, he found himself in the office of liquor contractor of Badwahaa namely Rinku Bhatia. At this place also, Mahendra and Omprakash were beaten by sticks, belts, kicks and fists. Mahendra again became unconscious. On 29.10.2020 at around 7.30 am when Mahendra gained consciousness, he found Omprakash is lying in another room in an unconscious stage. Mahendra could fled away from the said house and reached Indore where he narrated the said incident to brother Ramvachan. Lateron on 31.10.2020, Gourishankar informed him that Omprakash was taken to Sunderson Hospital on 29.10.2010 from where he was referred to M.Y. Hospital, Indore where he died on 31.10.2010.
3. As per information of incident furnished by Mahendra, ASI O.S. Kushwaha (PW.28) lodged the report and murg intimation was also recorded. The postmortem report was also obtained along death notification letter Ex.P/34 issued by the M.Y. Hospital. The intimation of death Ex.P/39 was recorded. The postmortem report Ex.P/38 was procured. Mahendra was subjected to medical examination and serious injuries were found on his body. Resultantly, after investigation against present appellants and three other persons, offences u/Ss.342, 364, 365, 302/149, 307/149 read with 201 of the IPC were registered by way of FIR Annexure P/34.
4. After completion of investigation, challan has been filed. In turn, matter was committed to the Court of Additional Sessions Judge. Appellants and co-accused persons abjured the guilt. The Court framed nine issues for determination.
5. The Court below after recording the statements of prosecution witnesses, permitted the appellants to put forth their defence. In their statements recorded u/S.313 CrPC, the appellants pleaded that they are innocent and have been falsely implicated. One defence witness namely Dr.Varsha Dhakad (DW.1) from M.Y. Hospital, Indore deposed in favour of the defence.
6. The Court below by impugned judgment found that the prosecution has satisfactorily and beyond reasonable doubt proved the charges against the appellants and resultantly convicted them and impos
SupremeToday
The prosecution's case must be established beyond reasonable doubt, especially when relying on dying declarations, which must be corroborated and trustworthy.
Murder – Non-examination of Doctor who conducted autopsy on dead body of deceased and who prepared post-mortem report is not fatal to case of prosecution.
The prosecution must conclusively establish guilt through circumstantial evidence, including motive and cause of death, in cases based on circumstantial evidence.
The reliability and consistency of dying declarations are crucial in criminal cases, especially when multiple contradictory declarations are present.
The court relied on oral and documentary evidence to establish the guilt of the accused under Section 302 IPC.
The reliability of an eyewitness is paramount, and without corroboration, their testimony cannot solely sustain a conviction in criminal jurisprudence.
A dying declaration can serve as the sole basis for conviction if it is credible, voluntary, and corroborated by other evidence, despite inconsistencies in earlier statements.
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