Babulal And Others v. State Of M.P .

Arijit Pasayat, J.— Twelve persons faced trial for alleged commission of offences punishable under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code, 1860 (in short “IPC”), were convicted by the 1st Additional Sessions Judge, Shivpuri and sentenced to undergo imprisonment for life in respect of offence punishable under Section 302 read with Section 149 IPC and three years for the rest of the offences. They preferred three appeals before the Madhya Pradesh High Court. By the impugned judgment the appeals were dealt with together and conviction and sentence in respect of Tulua (A-1), Babulal (A-2), Mahesh (A-6), Sahab Singh (A-9), Kishan Singh (A-10), Netram (A-11) and Jagdish Prasad (A-12) were maintained. Sentences of Tulua (A-1), Babulal (A-2) and Netram (A-11) were reduced to one year and two years respectively for offences relatable to Sections 147 and 148 respectively. The conviction in respect of Uttam Singh (A-3), Phool Singh (A-4), Sobran Singh (A-5), Krishna Kant (A-7) and Sarman Singh (A-8) was set aside. Tulua, Babulal and Netram (A-1), A-2 and A-11 respectively) were acquitted of the offence relatable to Section 148. They were convicted of the offence punishable under Section 147 IPC, while the convictions of Sahab Singh (A-9), Kishan Singh (A-10) and Jagdish Prasad (A-12) under Section 148 IPC were maintained with modified sentences. The said judgment is impugned in these appeals.

2. The prosecution version in a nutshell, leaving out unnecessary details, is as follows:

Mahila Raj Kunwar (PW 20) was previously the wife of accused Babulal (A-2). This marriage was performed while she was a minor. Since the character and reputation of Babulal was not without blemish and he was a habitual drunkard, used to gamble and had illicit relations with ladies, there was tension in the relationship between Raj Kunwar and Babulal. When the former tried to reform the latter and requested him to follow the correct path in life, she was beaten and was thrown out of his house in December 1985. Thereafter, she started living in the house of her father. According to the customs prevalent, she was remarried on 3-3-1986 with Chhatar Singh (hereinafter referred to as the deceased). This led to hostility and Babulal became inimical to the deceased. He tried to arouse the communal and caste feelings. On the date of occurrence i.e 9-3-1986 while the deceased was drawing water from his well all the accused persons reached there. Accused Jagdish, Sarman and Kasiram were each armed with a luhangi. Accused Sabo was armed with a gun, accused Mahesh was armed with a knife and accused Pappu was armed with a hockey stick. Accused Sobran, Kishan Lal and Phool were also armed with a luhangi each. In addition, accused Netram, Tulua and Babu were holding lathis in their hands. After reaching the place where the deceased was standing, accused Jagdish caught hold of him and other accused persons with common intention to cause his death inflicted injuries by their respective weapons. Though the deceased cried for help, no one immediately came to save him. However, when his mother (PW 2) reached near him, all the accused persons left the place. The deceased along with his mother (PW 2) and Pran Singh (PW 1) went to Police Chowk Magrauni and lodged a first information report regarding the incident with the then Station In-charge. Pran Singh (PW 1) had gone to the place on hearing from Brijesh Kumar (PW 11). When report was lodged, Shiv Baksh Singh (PW 16) sent the deceased for medical examination where Dr. Ajay Kumar Pathak (PW 19) conducted the medical examination. He found nearly seventeen injuries on his body. There were four internal injuries also. Most of them were inflicted with sharp-edged weapons whereas some were caused by hard and blunt weapons. The deceased was referred to District Hospital, Shivpuri for better treatment. Subsequently, the deceased breathed his last at the Primary Health Centre itself and could not be taken to the referral hospital. On completion of investigation, a charge-sheet was placed and the accused persons faced trial. They claimed innocence and false implication.

3. Though the trial court did not place much reliance on the evidence of the so-called eyewitnesses, yet it placed implicit reliance on the evidence of the deceased which was given before the police by way of an information which formed the first information report and was treated as a dying declaration. Accordingly, the appeal was allowed to the extent indicated, and in respect of some of the accused there was confirmation of the conviction and sentence. During the pendency of the appeal accused Tulua has died and by order dated 5-6-2003 it was directed that the appeal has abated so far as he is concerned.

4. In support of the appeals, the learned counsel for the appellants submitted that the approach of the High Court is erroneous. The evidence has not been analysed in detail which was required to be done, even though the High Court concurred with the reasoning and the conclusions. The dying declaration is not acceptable and even there is no material to show that he was in a fit condition to make the dying declaration. Even the eyewitnesses were not very sure that the deceased was in a fit condition, and even Murali and Brijesh Kumar (PWs 3 and 11 respectively) have given varying statements regarding his consciousness and Dr. Ajay Kumar Pathak (PW 19) was vague about his consciousness. Though Pran Singh (PW 1) stated that the deceased had put his signatures on the FIR, the original documents show that it was a thumb impression. The deceased was involved in a number of criminal cases. Therefore, it is not unlikely that he had many enemies and the accused persons had been falsely roped in. Though the trial court had disbelieved the evidence of PWs 1, 2, 3 and 11, the High Court by erroneous conclusion had placed reliance on their evidence.

5. In response, the learned counsel for the State submitted that the High Court has elaborately analysed the materials on record and has come to the right conclusion relying on the dying declaration. Though there was no necessity for any corroboration, the same was provided by the evidence of PWs 1, 2, 3 and 11 on which the High Court has acted upon.

6. Coming to the plea of the appellants relating to the detailed analysis of evidence, it can only be said that while concurring with the conclusions there need not be elaborate analysis which would be in essence a repetition of the conclusions and the reasoning. However, that does not do away with the requirement of the High Court in analysing the evidence and to indicate sufficient reasons even for the concurrence. There cannot be total absence of reasons. The position is different when the appellate court reverses the findings and the conclusions. In such a case there is an imperative requirement for detailed analysis of the evidence and reasoned conclusions. In the case at hand the High Court has dealt with the evidence and it cannot be said that there was total absence of reasons. Though analysed in brief, yet the vital aspects have been touched.

7. The pivotal point which was pressed into service with some amount of vehemence was acceptability of the dying declaration. There is no legal bar for the information given by the deceased to be treated as a dying declaration. This position was stated succinctly by this Court in Munnu Raja v. State of M.P (1976) 3 SCC 104, AIR 1976 SC 2199 Section 32 of the Indian Evidence Act, 1872 (in short “the Evidence Act”) deals with dying declaration. A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is “a man will not meet his Maker with a lie in his mouth” (nemo moriturus praesumitur mentiri). Mathew Arnold said, “truth sits on the lips of a dying man”. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. (See R. v. Woodcock (1789) 1 Leach 500.) The materials on record clearly established that the deceased was in a mentally fit condition, though battered in the physical frame. The High Court has rightly held that presence of PWs 1 and 2 did not result in any presumption of tutoring, when the FIR was recorded. Merely because there was a thumb impression on the FIR, and not the signature as stated by PW 1, that does not falsify the prosecution version. The same has been clarified by the High Court. It has to be noted that PW 16, who had scribed the FIR, stated that the contents were read over to the deceased, who had thereafter put his thumb impression. In fact the defence itself has suggested to PW 1 during cross-examination that the thumb impression was taken on the paper first and thereafter the writings were inserted. In other words, there was acceptance of the fact that the thumb impression was there but writings were done later which have been denied by PW 1. We do not find any reason to discard the dying declaration only on this ground. The High Court has also found in analysing the evidence that the plea relating to antedating or antetiming the FIR is a myth. Though some of the accused persons have been acquitted by the trial court, the High Court has carefully analysed the evidence and has sifted the grain from the chaff and disengaged the truth from falsehood. Merely because some persons have not been named in the FIR and have been given the benefit of doubt, that cannot be a reason for discarding the dying declaration or the evidence of the witnesses.

8. As far as the condition of the deceased at the time of dying declaration is concerned, it has been clearly established by the eyewitnesses that the declarant was in a condition to make the dying declaration. It is to be noted that at the time of dying declaration, the presence of PW 2 has been clearly mentioned. The evidence of PWs 1, 2 and 3 was treated to be as partisan. Relationship is not a factor to wipe out the credibility of any witness' evidence. The Court in a case where relatives are witnesses has to test their version on the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. (See: Munshi Prasad v. State of Bihar (2002) 1 SCC 351, Hukam Singh v. State of Rajasthan (2000) 7 SCC 490 and Bhagwan Singh v. State of M.P (2002) 4 SCC 85, JT (2002) 3 SC 387) The High Court has precisely done that. The trial court had entertained a shadow of doubt merely on account of their relationship. As rightly observed by the High Court, the approach is indefensible. That being the position, the evidence of eyewitnesses which has a ring of truth deserves acceptance, which the High Court has done. Though the evidence of PW 11 was attacked on the ground of having traces of tutoring, yet his whole evidence does not get wiped out even if it is assumed, as urged, that it contains exaggerations and embellishment. PW 2 who is the mother of the deceased had reached the place first. The presence of PW 2 (mother of the deceased) has been established by ample evidence. The appeals are sans merit and deserve dismissal, which we direct.