Back
2006 Supreme(MP) 1014
2007(1) JLJ 377
S.L. Kochar and W.A. Shah, JJ.
Sharif Khan v. State of M.P.
Criminal Appeal No. 866 of /996 (Indore) against the judgment of V Additional Sessions Judge, Ujjain, passed in Sessions Trial No.312
of 1993;
Decided on 5.9.2006.
S.K. Vyas for appellant;
Girish Desai, Deputy Advocate General for State.
Headnote:(1) Evidence Act, 1872 -- S.32(1) -- statements of deceased in FIR and in police statement and MLC Report -- relating to cause of death and circumstances of transaction which resulted in his death -- such documents rightly considered as dying declarations.
On 1.8.1993 Abdul Hamid was in his house. At that moment Basru quarrelled with Ashiq s/o Hamid and assaulted him. This incident was intervened and pacified by Abdul Hamid. On account of this incident, Ashiq and Basru had gone to lodge report at PS Jivajiganj. Abdul Hamid had also gone to police station. At the police station, Abdul Hamid came to know that his son Ashiq was referred to the hospital for his medical examination, therefore he also went to the hospital to see his son at about 12: 15 in the night. At the cycle stand accused Chand Khan and Kamruddin met him and alleged him to ensue quarrel on which Abdul Hamid replied that he did not do so and merely pacified the quarrel. On this reply, Chand and Kamruddin abused Abdul Hamid and threatened to eliminate him. Thereafter Abdul Hamid proceeded from there and , went up to the porch. At that time, accused Kamru and Chand caught hold of the hands of Abdul Hamid and accused Sharif came from inside the hospital and inflicted a knife blow at the right side of the abdomen of Abdul Hamid. Seeing this, people assembled• there and the accused persons fled away from there. Deceased was assaulted on account of ill will due to business of "Silavati"....During the course of treatment, Abdul Hamid died. [Para 2
Held: The learned trial Court has not committed any illegality in relying upon EX.P-l FIR, EX.P-7 MLC Report and EX.P-25 statement of the deceased as dying declarations of the deceased because the contents of all these three documents are admissible under section 32(1) of the Evidence Act. [Para 7
In view of the aforesaid provision, since statements of the deceased mentioned in all the three documents are relating to cause of his death and the circumstances of the transaction which resulted in his death, therefore, these documents have been rightly considered as dying declarations of the deceased. [Para 8
In view of the provision under section 32(1) of the Evidence Act (supra) and the observation of the Supreme Court mentioned hereinabove, there is no room for doubt that the statement of the deceased (Ex.P-25) would fall within the category of written dying declaration of the deceased. (2002)1 SCC 22 and (2004)9 SCC 257 followed. [Para 12
(2) Evidence Act, 1872 -- S.32(1) -- part of dying declaration -- can be acted upon -- there is no legal bar to act upon it. [Para 13
(3) Penal Code, 1860 -- Ss.304 Pt.II and 302 -- no bitter enmity or ill will -- incident occurred suddenly -- only one solitary blow without aiming -- offence falls under S.304 Pt.II. AIR 1990 SC 2252 and AIR 1983 SC 185 followed. [Paras 14 & 15
(4) Criminal P.C., 1973 -- S.357 -- case under S.304 Pt.II, IPC -- fine of Rs.15,000/- imposed besides RI of 5 years -- Rs.14,000/- ordered to be paid to widow of deceased or his LRs out of recovered fine. [Para 16
¼1½ lk{; vf/kfu;e] 1872& &/kkjk 32¼1½& &çFke bfÙkyk fjiksVZ esa e`rd dk dFku] mldk iqfyl dFku rFkk ,e ,y lh fjiksVZ& &e`R;q ds dkj.k vkSj mldh e`R;q esa ifj.kr gksus okys laO;ogkj dh ifjfLFkfr;ksa ls lacaf/kr& &,sls nLrkost e`R;qdkfyd dFku Bhd gh ekus x,A
1-8-1993 dks vCnqy gehn vius ?kj ij FkkA mlh le; cl: us vkf‘kd iq= gehn ds iq= ls >xM+k fd;k vkSj ml ij geyk fd;kA bl ?kVuk esa vCnqy gehn us e/;{ksi fd;k vkSj mUgsa ‘kkar fd;kA bl ?kVuk ds dkj.k vkf‘kd vkSj cl: iqfyl Fkkuk thokthxat esa fjiksVZ nkf[ky djkus x,A vCnqy gehn Hkh iqfyl Fkkus x;k FkkA iqfyl Fkkus esa vCnqy gehn dks Kkr gqvk fd mlds iq= vkf‘kd dks fpfdRlh; ijh{k.k ds fy, vLirky funsZf‘kr fd;k x;k gS blfy, og Hkh jkf= esa yxHkx 12%15 cts vius iq= dks ns[kus vLirky x;kA lkbfdy LVSaM ij vfHk;qDr pk¡n [kka vkSj de#n~nhu mls feys vkSj ml ij >xM+k djus dk vkjksi yxk;k ftl ij vCnqy gehn us mÙkj fn;k fd mlus ,slk ugha fd;k vkSj dsoy >xM+k ‘kkar djk;kA bl mÙkj ij pk¡n vkSj de#n~nhu us vCnqy gehn dks xkfy;k¡ nha vkSj mls lekIr djus dh /kedh nhA rRi‘pkr vCnqy gehn ogk¡ ls M~;ks<+h dh vksj c<+kA mlh le; vfHk;qDr de#n~nhu vkSj pk¡n us vCnqy gehn ds gkFk idM+ fy, vfHk;qDr ‘kjhQ vLirky ds Hkhrj ls vk;k vkSj mlus vCnqy gehn ds mnj dh nkfguh vksj pkdw ls okj fd;kA ;g ns[k dj ogk¡ yksx ,df=r gks x, rFkk vfHk;qDr ogk¡ ls Hkkx x,A e`rd ij geyk ^^flyokVh** ds dkjckj ls mn~Hkwr oSeuL; ds dkj.k gqvk FkkA--- mipkj ds nkSjku vCnqy gehn dh e`R;q gks xbZA ¼iSjk 2½
vfHkfu/kkZfjr % fo}ku fopkj.k U;k;ky; us çn‘kZ ih&1 çFke bfÙkyk fjiksVZ] çn‘kZ ih&7 ,e ,y lh fjiksVZ rFkk e`rd ds dFku çn‘kZ ih&25 dk e`rd ds e`R;qdkfyd dFkuksa ds :i esa voyac ys dj dksbZ Hkh voS/krk ugha dh gS D;ksafd bu rhuksa nLrkostksa dh varoZLrq lk{; vf/kfu;e dh /kkjk 32¼1½ ds v/khu xzkg; gSA ¼iSjk 7½
iwoksZDr mica/k dh n`f"V ls] D;kasfd rhuksa nLrkostksa esa mfYyf[kr e`rd ds dFku mldh e`R;q ds dkj.k vkSj ml laO;ogkj dh ifjfLFkfr;ksa ls lacaf/kr gSa tks mldh e`R;q esa ifj.kr gqvk] blfy, bu nLrkostksa dks e`rd ds e`R;qdkfyd dFku Bhd gh ekuk x;k gSA ¼iSjk 8½
lk{; vf/kfu;e dh /kkjk 32¼1½ ¼iwoksZDr½ ds v/khu mica/k rFkk ,rfLeuiwoZ mfYyf[kr mPpre U;k;ky; dh leqfDr dh n`f"V ls blesa lansg dh xqatkb‘k ugha fd e`rd dk dFku ¼çn‘kZ ih&25½ e`rd ds fyf[kr e`R;qdkfyd dFku ds çoxZ ds varxZr vk,xkA ¼2002½ 1 ,l lh lh 22 rFkk ¼2004½9 ,l lh lh 257 vuqlfjrA ¼iSjk 12½
¼2½ lk{; vf/kfu;e] 1872& &/kkjk 32¼1½& &e`R;qdkfyd dFku dk Hkkx& &ml ij dk;Zokgh dh tk ldrh gS& &ml ij dk;Zokgh djus dk fof/kd otZu ughaA ¼iSjk 13½
¼3½ naM lafgrk] 1860& &/kkjk 304 Hkkx 2 rFkk 302& &?kksj ‘k=qrk ;k oSeuL; ugha& &?kVuk vpkud ?kVh& &fu‘kkuk lk/ks fcuk dsoy ,d ckj okj& &vijk/k /kkjk 304 Hkkx 2 ds v/khu vkrk gSA , vkb vkj 1990 ,l lh 2252 rFkk , vkb vkj 1983 ,l lh 185 vuqlfjrA ¼iSjk 14 ,oa 15½
¼4½ naM çfØ;k lafgrk] 1973& &/kkjk 357& &ekeyk naM lafgrk dh /kkjk 304 Hkkx 2 ds v/khu& &5 o"kZ ds dfBu dkjkokl ds vfrfjDr #- 15]000@& dk tqekZuk vf/kjksfir& &olwy fd, x, tqekZus esa ls # 14]000@& e`rd dh fo/kok ;k mlds fof/kd çfrfuf/k;ksa dks lank; fd;k tkuk vknsf‘krA ¼iSjk 16½
Kochar, J. -- 1. The appellant named above stands convicted under section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life with fine of Rs.500/-, in default of payment of fine to suffer additional RI for three months by judgment dated 28.9.1996 rendered in ST No.312/1993 by the learned V Additional Sessions Judge, Ujjain. Being aggrieved by the said judgment, the appellant has come up in appeal before this Court.
2. The prosecution case as unfurled before the trial Court was that on 1.8.1993 Abdul Hamid was in his house. At that moment Basru quarrelled with Ashiq s/o Hamid and assaulted him. This incident was intervened and pacified by Abdul Hamid. On account of this incident, Ashiq and Basru had gone to lodge report at PS Jivajiganj. Abdul Hamid had also gone to police station. At the police station, Abdul Hamid came to know that his son Ashiq was referred to the hospital for his medical examination, therefore he also went to the hospital to see his son at about 12:15 in the night. At the cycle stand accused Chand Khan and Kamruddin met him and alleged him to ensue quarrel on which Abdul Hamid replied that he did not do so and merely pacified the quarrel. On this reply, Chand and Kamruddin abused Abdul Hamid and threatened to eliminate him. Thereafter Abdul Hamid proceeded from there and went upto the porch. At that time, accused Kamru and Chand caught hold of the hands of Abdul Hamid and accused Sharif came from inside the hospital and inflicted a knife blow at the right side of the abdomen of Abdul Hamid. Seeing this, people assembled there and the accused persons fled away from there. Deceased was assaulted on account of ill will due to business of "Silavati". A report of the incident was lodged by Abdul Hamid vide Ex.P-1, recorded by SI Shri Arvind Tambe (PW15) in Civil Hospital compound. On the basis of this report, Crime No.0/93 under section 307/34 of the Indian Penal Code was registered in police outpost. On the basis of Ex.P-1, Crime No.255/1993 under section 307/34 of the Indian Penal Code vide EX.P-2 FIR was registered in Police Station, Kotwali Ujjain. Abdul Hamid was medically examined by Dr. R.K. Dhawan, who is said to have expired. He gave injury report Ex.P-7, statement of the injured was recorded under section 161 of the Criminal Procedure Code vide EX.P-25. During the course of treatment, Abdul Hamid died. His body was sent for post-mortem examination, which was conducted by Dr. Harish Rathore vide Ex.P-9, during investigation, clothes of the deceased and weapon of offence were seized by the police.
3. After due investigation, the accused persons were charge-sheeted for the offence under section 302/34 of the Indian Penal Code. They pleaded not guilty and stated that they have been falsely implicated. They did not examine any witness in their defence. The prosecution, in order to establish its case, examined as many as 15 witnesses. After completion of trial and hearing the parties, the trial Court did not find the accused Karnruddin and Chandkhan guilty of any offence and acquitted them from the offence charged. However, the trial Court finding the appellant Sharif Ahmed guilty of the offence under section 302 of the Indian Penal Code, convicted and sentenced him as indicated herein above.
4. We have heard Shri S.K. Vyas, Advocate for the appellant and Shri G.Desai, learned Deputy A.G. appearing for the State and gone through the entire evidential material available on record.
5. The learned counsel for appellant submitted that conviction of the appellant is based on FIR lodged by deceased (Ex.P-1), his MLC report (Ex.P-7) containing history of the patient bearing name of the accused and statement of deceased recorded during the course of investigation under section 161 of the Criminal Procedure Code by SHO, Arvind Tambe (PW15) of PS Central Kotwali Ujjain trating all these documents as dying declaration. The learned counsel has criticised all these documents categorically
