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IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Avanindra Kumar Singh, JJ.
Altaf Ahmad Ansari v. State of Madhya Pradesh
Criminal Appeal No. 1232 of 2015 (Jabalpur): against the judgment dated 25.3.2015 passed by the Additional Sessions Judge, Sihora, Jabalpur in Sessions Trial No. 297/2012;
Decided on 15.5.2023
(1) Criminal Trial -- non-examination of witness -- one person brought injured/victim to hospital but prosecution did not produce him as witness -- cannot be said that injured/victim had not undergone medical examination -- more so, when no cross-examination of doctor conducted to demolish case of prosecution that victim was taken to hospital. [Para 50
(2) Evidence Act, 1872 -- S. 32 -- oral dying declaration -- witnesses categorically deposed about oral dying declarations given to them by deceased -- no amount of cross-examination could demolish case of prosecution in this regard -- doctor stated in clear terms after examining nature of injuries that possibility and capacity to speak could very well be there -- another witness stated that injured victim was lying in front of her house (where she was assaulted) and was crying and stating that appellant had caused injuries -- no reason found to disbelieve oral dying declarations. 2017 All MR (Cri.) 245 distinguished. [Paras 51 & 52
(3) Criminal Trial -- two different medical reports regarding injuries on body of appellant -- one doctor made it clear in his cross-examination that singular role assigned to him was to examine private part of appellant -- question of comparing number of injuries on whole body and contradictions etc. fades into insignificance. [Para 53
(4) Criminal Trial -- delay in sending nails of deceased for to FSL -- nails are not like blood which get spoilt if not send to FSL with quite promptitude -- no cross-examination made to establish that nails were not kept in proper custody before sending -- mention in report of FSL that nails were taken from Sihora Hospital -- is typographical error -- indisputably, victim died at Jabalpur and autopsy surgeon clearly established that her nail cuttings were taken at Jabalpur -- this technical mistake will not cause any dent on prosecution story. [Para 54
(5) Practice -- Court below has taken plausible view -- appellate Court should not disturb it merely because another view is possible. [Para 55
(6) Recovery -- not matching blood group -- prosecution established with sufficient accuracy and precision about collection of blood sample of appellant, sending it to FSL promptly and that seal of hospital on sealed packets were found intact by FSL -- origin and recovery of blood sample satisfies judicial conscience -- prosecution could establish beyond reasonable doubt that human blood of appellant’s origin was found on weapon. 2023 (1) JLJ 21 (SC) = AIR 2021 SC 4031 = AIR Online 2021 SC 517 followed. [Para 62
(7) Penal Code, 1860 -- S. 302 -- oral dying declaration cannot be disbelieved -- death homicidal in nature -- nail samples of deceased sent for examination to FSL -- DNA report of blood sample of appellant against him -- broken buttons of appellant’s shirt found from scene of crime -- entire chain of events established by leading credible evidence -- non-production of Court order for taking appellant to hospital from jail for obtaining his blood sample of no consequence as doctor and another witness proved beyond reasonable doubt the presence of appellant in hospital and taking of his blood sample -- since entire chain of circumstances could be established with accuracy and precision, non-production of complainant who is not eye-witness, will not provide any browny point to appellant. (1984) 4 SCC 116 followed. [Paras 63 to 66
(8) Penal Code, 1860 -- Ss. 4 Excep. 300, 302, 304 Pt. I and 304 Pt. II -- applicability of exception 4 of S. 300 -- appellant brutally committed heinous crime -- unable to hold that he had not taken undue advantage or not acted in cruel or unusual manner -- victim was relative of appellant -- in good faith, permitted appellant to enter her house -- appellant caused multiple injuries by means of sharp-edged weapon -- conviction u/s. 302 cannot be modified to one u/s. 304 Pt. I or Pt. II. 2003 (2) JLJ 166 (SC) = AIR 2003 SC 1620 distinguished. [Para 68
(9) Witness -- interested witness -- relatives of victim are relatives of appellant as well -- could not be established that prosecution witnesses had any interest in falsely arraigning appellant -- cannot be said to be ‘interested witnesses’. AIR 1993 SC 2644 distinguished. [Para 70
(10) Witness -- what matters is quality of evidence -- not their quantity. 2002 CrLJ 3558 referred to. [Para 71
¼1½ nkafMd fopkj.k && lk{kh dh ijh{kk ugha djuk && ,d O;fDr vkgr@ihfM+rk dks fpfdRlky; yk;k Fkk ijarq vfHk;kstui{k us mls lk{kh ds :i esa is'k ugha fd;k && ;g ugha dgk tk ldrk fd vkgr@ihfM+rk dh fpfdRlh; ijh{kk ugha gqbZ && rc vkSj Hkh tc vfHk;kstu ds bl i{kdFku dks [kafMr djus ds fy, fpfdRld dh izfrijh{kk ugha dh xbZ fd ihfM+rk dks fpfdRlky; ys tk;k x;k FkkA ¼iSjk 50
¼2½ lk{; vf/kfu;e] 1872 &&/kkjk 32 && ekSf[kd e`R;qdkfyd dFku && lkf{k;ksa us e`rdk }kjk mUgsa fn, x, ekSf[kd e`R;qdkfyd dFkuksa ds ckjs esa Li"V vfHklk{; fn;k && bl laca/k es foLr`r izfrijh{kk ls vfHk;kstu ds i{kdFku dk [kaMu ugha fd;k tk ldk && fpfdRld us {kfr;ksa dh izÑfr dk v/;;u djus ds i'pkr~ Li"V 'kCnksa esa dgk fd cksyus dh laHkkouk vkSj lkeF;Z HkyhHkk¡fr gks ldrs Fks && ,d vU; lk{kh us dgk fd vkgr ihfM+rk vius ?kj ds lkeus ¼tgk¡ ml ij geyk fd;k x;k½ iM+h Fkh rFkk fpYyk dj dg jgh Fkh fd vihykFkhZ us {kfr;k¡ dkfjr dh gSa && ekSf[kd e`R;qdkfyd dFkuksa ij vfo'okl djus dk dksbZ dkj.k ugha ik;k x;kA 2017 vkWy ,e vkj ¼fØ-½ 245 izHksfnrA ¼iSjk 51 ,oa 52
¼3½ nkafMd fopkj.k && vihykFkhZ ds 'kjhj dh {kfr;ksa ds ckjs esa nks fHkUu fpfdRlh; izfrosnu && ,d fpfdRl;d us viuh izfrijh{kk esa Li"V fd;k x;k fd mldh ,dek= Hkwfedk vihykFkhZ ds xqIrkaxksa dk ijh{k.k djus dh Fkh && laiw.kZ 'kjhj dh {kfr;ksa dh la[;k dh rqyuk vkSj fojks/kkHkklksa dk iz'u egRoghu gks tkrk gSA ¼iSjk 53
¼4½ nkafMd fopkj.k && e`rdk ds uk[kwu U;k;kyf;d iz;ksx'kkyk Hkstus esa foyac && uk[kwu jDr dh Hkk¡fr ugha gksrs] tks ;fn vfoyac U;k;kyf;d iz;ksx'kkyk ugha Hksts tk,¡ rks [kjkc gks tk,¡xs && ;g LFkkfir djus ds fy, dksbZ izfrijh{kk ugha dh xbZ fd Hkstus ds iwoZ uk[kwu mfpr vfHkj{kk esa ugha j[ks x, && U;k;kyf;d iz;ksx'kkyk ds izfrosnu esa mYys[k fd uk[kwu flgksjk fpfdRlky; ls fy, x, Fks && Vadu =qfV gS && fufoZokfnr :i ls] ihfM+rk dh e`R;q tcyiqj esa gqbZ rFkk 'ko&ijh{kk djus okys 'kY;fpfdRld us Li"V fl) fd;k fd mlds uk[kwuksa dh drju tcyiqj esa yh xbZ Fkh && bl rduhdh Hkwy ls vfHk;kstui{k dh dgkuh dks dksbZ dqBkjk?kkr ugha igq¡psxkA ¼iSjk 54
¼5½ izFkk && fupys U;k;ky; us lR;kHkklh n`f"Vdks.k viuk;k && vihy U;k;ky; dks mls ek= blfy, fo{kqC/k ugha djuk pkfg, fd ,d vU; n`f"Vdks.k laHko gSA ¼iSjk 55
¼6½ cjkenxh && jDr lewg dk feyku ugha djuk && vfHk;kstui{k us i;kZIr ;FkkZFkrk vkSj lVhdrk ls LFkkfir fd;k fd vihykFkhZ ds jDr dk uewuk fy;k x;k] mls vfoyac U;k;kyf;d iz;ksx'kkyk Hkstk x;k rFkk U;k;kyf;d iz;ksx'kkyk }kjk eqgjcan iqfyanksa ij fpfdRlky; dh eqnzk v{kq..k ikbZ xbZ Fkh && jDr ds uewus ds lzskr rFkk cjkenxh ds ckjs esa U;k;ky; dh U;kf;d var'psruk dk lekèkku gqvk && vfHk;kstui{k ;qfDr;qDr lansg ds ijs LFkkfir dj ldk fd vk;q/k ij ik, x, ekuo jDr dk lzksr vihykFkhZ FkkA 2023 ¼1½ ts ,y ts 21 ¼mPpre U;k-½ ¾ , vkb vkj 2021 ,l lh 4031 ¾ , vkb vkj vkWuykbu 2021 ,l lh 517 vuqlfjrA ¼iSjk 62
¼7½ naM lafgrk] 1860 &&/kkjk 302 && ekSf[kd e`R;qdkfyd dFku ij vfo'okl ugha fd;k tk ldrk && e`R;q ekuo o/k izÑfr dh && e`rdk ds uk[kwuksa ds uewus ijh{kk ds fy, U;k;kyf;d iz;ksx'kkyk Hksts x, && vihykFkhZ ds jDr ds uewus dk Mh,u, izfrosnu mlds fo#) && vijk/k LFky ls vihykFkhZ dh deht ds VwVs gq, cVu ik, x, && ?kVukvksa dh laiw.kZ J`a[kyk fo'oluh; lk{; is'k dj LFkkfir dh xbZ && vihykFkhZ ds jDr dk uewuk vfHkizkIr djus ds fy, mls tsy ls fpfdRlky; ys tkus gsrq U;k;ky; dk vkns'k is'k ugha djuk egRoghu D;ksafd fpfdRld vkSj ,d vU; lk{kh us fpfdRlky; esa vihykFkhZ dh mifLFkfr vkSj mlds jDr dk uewuk fy;k tkuk ;qfDr;qDr lansg ds ijs lkfcr fd;k && ifjfLFkfr;ksa dh laiw.kZ J`a[kyk ;FkkFkZrk vkSj lVhdrk ls LFkkfir dh tk ldh blfy, f'kdk;rdrkZ dks] tks izR;{kn'khZ lk{kh ugha Fkk] is'k ugha djus ls vihykFkhZ dks dksbZ Qk;nk izkIr ugha gksxkA ¼1984½4 ,l lh lh 116 vuqlfjrA ¼iSjk 63 ls 66
¼8½ naM lafgrk] 1860 &&/kkjk 4 viokn 300] 302] 304 Hkkx 1 rFkk 304 Hkkx 2 &&/kkjk 300 ds viokn 4 dk ykxw gksuk && vihykFkhZ us funZ;rk ls t?kU; vijkèk fd;k && ;g vfHkfu/kkZfjr ugha fd;k tk ldrk fd mlus vuqfpr Qk;nk ugha mBk;k vFkok Øwj ;k vlkekU; jhfr esa dk;Z ugha fd;k && ihfM+rk vihykFkhZ dh ukrsnkj Fkh && ln~Hkkoiw.kZd vihykFkhZ dks vius ?kj esa izos'k djus fn;k && vihykFkhZ us rh{.k/kkj okys vk;q/k ls vusdkusd {kfr;k¡ dkfjr dha &&/kkjk 302 ds v/khu nks"kflf) /kkjk 304 Hkkx 1 vFkok Hkkx 2 ds v/khu nks"kflf) esa mikarfjr ugha dh tk ldrhA 2003 ¼2½ ts ,y ts 166 ¼mPpre U;k-½ ¾ , vkb vkj 2003 ,l lh 1620 izHksfnrA ¼iSjk 68
¼9½ lk{kh && fgrc) lk{kh && ihfM+rk ds ukrsnkj vihykFkhZ ds Hkh ukrsnkj
&& LFkkfir ugha fd;k tk ldk fd vihykFkhZ ij feF;k nks"kkjksi.k djus esa vfHk;kstui{k ds lkf{k;ksa dk dksbZ fgr Fkk && ^fgrc) lk{kh* ugha dgs tk ldrsA , vkb vkj 1993 ,l lh 2644 izHksfnrA¼iSjk 70
¼10½ lk{kh && lk{; dh xq.koÙkk egRoiw.kZ gS && lkf{k;ksa dh la[;k ughaA 2002 lhvkj ,y ts 3558 fufnZ"VA ¼iSjk 71
JUDGMENT
1. This appeal filed under section 374(2) of Criminal Procedure Code, 1973 (Cr.P.C.) takes exception to the judgment dated 25.3.2015 passed in Sessions Trial No.297/2012 by learned Additional Sessions Judge, Sihora District Jabalpur, whereby learned Court below convicted and sentenced the appellant as under :--
| Convicted under sections | Sentenced to undergo |
| 302 of I.P.C. | R.I. for Life with fine of Rs.2,000/-, in default, to undergo additional R.I. for six months. |
Factual background :--
2. The story of prosecution is that on 23.1.2012 at around 12 O’clock, the appellant, a relative of deceased Tanveer, reached the house of deceased and assaulted her by means of a sharp edged weapon. After causing injuries, he fled away from the scene of crime but the neighbours could caught hold of him and a sharp edged weapon ‘Khurpi’ was recovered from him. Two buttons of his shirt were missing when appellant was caught hold by certain persons.
3. Tanveer was immediately taken to Sihora Hospital. Considering her serious condition, Tanveer was referred for treatment to Medical College, Jabalpur but she was taken to Narmada Hospital, Jabalpur where she died.
4. Sajid Ansari (PW-5) lodged the FIR (Ex.P/3) in Police Station Sihora. The ‘merg’ intimation was given to Kotwali, Jabalpur through Ex.P/30.
5. Since the appellant was caught hold by certain persons, police upon reaching the scene of crime, took him in custody and a memorandum under section 27 of Indian Evidence Act (Evidence Act) was prepared. The weapon ‘Khurpi’ was recovered through Ex.P/8. The shirt which appellant was wearing at that time was seized through Ex.P/10. Spot Map (Ex.P/4) was prepared. Another Spot Map (Ex.P/5) was prepared by Tahsildar. Blood stained soil, plain soil, broken pieces of bangles, ply-board, cushion, buttons, slippers and earrings were recovered through Ex.P/9.
6. The post mortem was conducted by Dr. Mukesh Agrawal (PW20) and the Post Mortem Report is Ex.P/22. During post mortem, Dr. Mukesh Agrawal (PW-20) sealed the nails and clothes of the deceased which were sent to Forensic Science Laboratory (FSL) through Ex.P/38. During the course of investigation, the blood sample of appellant was taken through Ex.P/20. The sample was sealed through Seizure Memo (Ex.P/21). The slippers of appellant were recovered through Ex.P/12. The seized material was sent through letter of Superintendent of Police (S.P.) through Ex.P/31 and Ex.P/32 to FSL. In turn, report of FSL (Ex.P/36 & Ex.P/37) were received. After completion of investigation, chalan was filed and in due course, matter came up for trial before Sessions Court. The appellant abjured his guilt and prayed for full fledged trial.
7. 34 witnesses entered the witness box and deposed their statements on behalf of the prosecution. Furthermore, 38 documents were exhibited before the Court below by the prosecution. The defence did not lead any evidence. In his statement recorded under section 313 of Cr.P.C., the appellant stated that he has been falsely arraigned.
8. The Court below framed four points for its determination and after recording the evidence and hearing both the parties, passed the impugned judgment of conviction and sentence.
Contention of appellant :-
9. Shri Abhinav Dubey, learned counsel for the appellant by taking this Court to the statements of prosecution witnesses one by one submits that the Court below erroneously convicted the appellant. The first and foremost reliance is on the statement of Akram Raja Ansari (PW-1) who deposed that he had seen that deceased received several injuries and it appears that such injuries were caused by means of a Khurpi. Several persons assembled at the scene of crime and stated that the appellant caused these injuries. The injured was taken to Sihora hospital and from there she was referred to Jabalpur for treatment but she died in midway
The integrity of dying declarations is affirmed where corroborative medical evidence reinforces their reliability, despite procedural irregularities, leading to conviction.
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 main legal point established in the judgment is that in cases based on circumstantial evidence, the prosecution must prove the guilt of the accused beyond reasonable doubt, and the evidence prese....
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