The court clarified that an FIR can be treated as a dying declaration when corroborated by reliable witnesses, impacting murder versus manslaughter charges.

JUDGMENT

(23/10/2021)

Per: Atul Sreedharan, J :

The present appeal has been filed by the appellants herein aggrieved by the order dated 30.09.2009 passed in Sessions Trial No.08/2009 by the learned Special Sessions Judge, Harda, whereby the appellants were found guilty and convicted for the offence under Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced to RI for life and fine of Rs.2,000/- and RI for six additional months in default thereof. They were also punished for offence under Section 323 and 506 of IPC and sentenced to suffer RI for 1 year for each of the said offence. Sentences were to run concurrently.

2. The case of the prosecution is that on 29.10.2008 at about 07:00 p.m., the deceased Om Prakash was assaulted by the appellants herein because of which he died. Exhibit P-19 is the FIR, which is Crime No.82/2008 registered at Police Station Sirali, District Harda by the deceased Om Prakash himself. The FIR was registered at 10:45 p.m. in the night. As per the contents of the FIR the deceased Omprakash, had gone to the appellants on the date of the incident at 07:00 p.m. in order to demand his labour charges for some work that was done on their field by him amounting to Rs.50/-. Appellant No.1 informed the deceased that amount has already been paid to him. Upon this an altercation broke out and the appellants herein are alleged to have assaulted the deceased which resulted in injuries and his subsequent death two days later on 31.10.2008. The deceased clearly mentions that the appellant No.1 was armed with a Lathi and appellant No.2 was armed with an iron rod, he further mentions that the assault upon him was a murderous assault.

3. The MLC of the deceased is Exhibit P-15 which is prepared on 29.10.2008 by PW-14. There were four injuries which were recorded by the Doctor, two of them were lacerated wounds, one over the right parietal region of the head and the other over left parietal region of the head. Injury No.3 was a contusion resulting in a diffused swelling around the right eye which did not impair the vision and injury No.4 was an abrasion mark on the scapular region. In the MLC Doctor has opined that all injuries were simple in nature caused by hard and blunt object with a rough surface. Thereafter the Doctor performing the MLC referred the deceased to District Hospital Harda for admission and needful management. After being treated at Harda, the deceased passed away on 31.10.2008.

4. The Post-mortem was performed by Dr. N.K. Gaur and it is Exhibited as P-23. It is relevant to mention here that Dr. N.K. Gaur has not been examined as a witness and this document has been proved by PW-14. As regards the injuries present on the body of the deceased, the Doctor records that there was an extradural haemorrhage on the left parieto-temporal region and a subdural haemorrhage on the right parietal region and a haematoma on the base of the skull on the right side. The examination of the skull does not reflect any fracture on it. The cause of death opined by the Doctor in the post-mortem report is injury to the vital organ (brain) which has resulted in a cardiorespiratory arrest.

5. Learned Amicus Curiae for the appellants has argued that all the material witnesses in this case have turned hostile and have not supported the case of the prosecution and that the learned trial court has relied upon the FIR registered by the deceased himself and considered the same to be a dying declaration. Likewise, the statements of PW11 Droptabai and PW12 Maganbai have also been relied upon by the learned trial court as witnesses to oral dying