Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(MP) 716

IN THE HIGH COURT OF MADHYA PRADESH(GWALIOR BENCH)
G.S. AHLUWALIA, RAJEEV KUMAR SHRIVASTAVA, JJ.
Virendra Sharma – Appellant
Versus
State of M.P. – Respondent
Cr.A. No.311 of 2010, Cr.A. No. 312 of 2010, Cr.A. No. 3050 of 2018
Decided on : 10-12-2021

Advocates:
Advocate Appeared:
For the Appellant : Shri Anoop Nigam, Shri S.S. Kushwaha, adv
For the Respondent: Virendra Sharma and Devendra Sharma, Shri Rajeev Upadhyaya

The reliability of eyewitness testimony and oral dying declaration in criminal cases, and the reasonableness of delayed recording of police statements.

Headnote:
Criminal Appeal - Conviction under Section 302 of I.P.C. - Summary of Acts and Sections: The court discussed the evidence of eyewitnesses and oral dying declaration in a case involving the appellants Virendra Sharma, Devendra Sharma, and Kishan Sharma. The judgment affirmed the conviction of Virendra Sharma and Devendra Sharma for the offense under Section 302 of I.P.C. and the conviction of Kishan Sharma for the offense under Section 302/34 of I.P.C.
Fact of the Case:

The case involved an incident where the appellants were accused of assaulting the deceased Rakesh Sharma, resulting in his death. The prosecution presented eyewitness accounts and an oral dying declaration made by the deceased. The appellants denied their guilt and challenged the credibility of the witnesses.
Finding of the Court:

The court found the eyewitnesses' accounts and the oral dying declaration to be reliable, leading to the affirmation of the appellants' convictions. The court also addressed the delayed recording of police statements, dismissing it as reasonable given the circumstances.
Issues: The main issues revolved around the credibility of the eyewitnesses and the oral dying declaration, as well as the delayed recording of police statements.
Ratio Decidendi: The court relied on the reliability of the eyewitnesses' accounts and the oral dying declaration in reaching its decision. It also dismissed the argument regarding the delayed recording of police statements.
Final Decision: The court affirmed the convictions of Virendra Sharma and Devendra Sharma for the offense under Section 302 of I.P.C. and the conviction of Kishan Sharma for the offense under Section 302/34 of I.P.C. The appellants were directed to undergo the remaining jail sentence.

JUDGMENT :

G.S. Ahluwalia J.

1. By this common judgment, the Cr.A. No.s 311/2010, 312/2010 and 3050/2018 filed by Virendra Sharma, Devendra Sharma and Kishan Sharma, respectively shall be decided.

2. Criminal Appeal No.s 311/2010 and 312/2010 have been filed under Section 374 of Cr.P.C. against the judgment and sentence dated 5-3-2010 passed by 3rd Additional Sessions Judge, Shivpuri in S.T. No. 14/2009, whereas Cr.A. No.3050/2018 has been filed under Section 374 of Cr.P.C. against the judgment and sentence dated 15-2-2018 passed by 3rd Additional Sessions Judge, Shivpuri in Sessions Trial No.400014/2019 and convicted and sentenced the appellants for the following offences :

Appellant	Conviction Under Section	Sentence
Virendra Sharma	302 of IPC	Life Imprisonment and fine of Rs. 5,000/-in default 6 months R.I.
Devendra Sharma	302 of IPC	Life Imprisonment and fine of Rs.5,000/-in default 6 months R.I.
Kishan Sharma	302/34 of IPC	Life Imprisonment and fine of Rs. 2,000/-in default 2 months R.I.

3. The incident is alleged to have taken place on 28-9-2008, whereas the appellant Virendra Sharma was arrested on 3-10-2008, Devendra Sharma was arrested on 1-4-2009 and Kishan Sharma was arrested on 16-1-2014. When, the appellant Virendra Sharma was being tried, then during the pendency of the Trial, the appellant Devendra Sharma was also arrested, therefore, the witnesses were resummoned. However, Kishan Sharma was tried separately.

4. According to the prosecution case, the complainant Deenadayal (P.W. 7), who himself was in also an injured condition, came to the police station along with Rakesh (deceased), who was seriously injured. Deendayal (P.W. 7) lodged a report on 28-9-2008 at 10:40 A.M. to the effect, that at about 10 A.M., he was tying his calf at his well. At that time, the appellants came on a motor cycle. The appellant Devendra Sharma said that they have already dealt with Rakesh Doctor and on account of old enmity, he started assaulting him by means of lathi. The appellant Virendra Sharma instigated the appellant Kishan Sharma, to kill him and accordingly, the appellant Kishan Sharma fired a gun shot, but the complainant escaped unhurt. His mother came there in order to save him, therefore, all the appellants ran away. Thereafter, he went towards the culvert and found that the deceased Rakesh was lying in an injured condition. The complainant enquired from him. The injured/deceased Rakesh informed him that he was coming back after getting his beard shaved. At the bus stand, he was waylaid by the appellants and the appellant Kishan Sharma pointed his country made pistol on his chest and the appellants Devendra Sharma and Virendra Sharma have assaulted him by lathis as a result he has sustained multiple injuries on various parts of his body. Thereafter, the complainant took him to police station, whereas F.I.R. was lodged.

5. Thereafter, the injured Rakesh was sent for medical examination to Primary Health Centre, Bairad, Distt. Shivpuri, from where he was referred to Madhav Dispensary Lashkar, Gwalior. The deceased Rakesh, died on the way of Gwalior. The post-mortem of the deceased was got done. The Statements of the witnesses were recorded. The lathi was seized from appellant Virendra Sharma. The police after concluding the investigation, filed the charge sheet against the appellant Virendra Sharma for offence under Section 302,307,34,294/34 of I.P.C. The appellant Devendra Sharma was arrested during the pendency of the Trial, therefore, supplementary charge sheet was filed for offence under Sections 302,307,341,294/34 of I.P.C.

6. The Trial Court by order dated 14-1-2009, framed charge under Section 302 of I.P.C. against the appellant Virendra Sharma and by order dated 11-1-2010, framed charges under Sections 302,323 of I.P.C. against the appellant Devendra.

7. The appellants Vir