HIGH COURT OF MADHYA PRADESH : JABALPUR ………………………………………………………………………………………………………………………………. Present : Hon’ble Smt. Justice Sushma Shrivastava Hon’ble Shri Justice R.C. Mishra ………………………………………………………………………………………………………………………………. Criminal Appeal No.1049/1993 Santosh, son of Chamanlal Rai, aged about 25 years, Resident of Bhim Ward, Bina, Tahsil Khurai, District Sagar …Appellant vs. State of M.P., through SHO P.S. Bina, Distt. Sagar …Respondent ------------------------------------------------------------------------------------ Shri Surendra Singh, Senior Counsel with Shri Shivam Singh, Advocate, for the appellant. Shri Umesh Pandey, Govt. Advocate, for the respondent-State. & Criminal Appeal No.304/1994 State of Madhya Pradesh, through SHO P.S. Bina, Distt. Sagar …Appellant vs. (1) Ravi Rai, son of Chamanlal Rai, aged about 34 years, Resident of Bhim Ward, Bina Tahsil Khurai, District Sagar (2) Santosh, son of Chamanlal Rai, aged about 25 years, Resident of Bhim Ward, Bina Tahsil Khurai, District Sagar (3) Rakesh, son of Munnalal Verma, aged about 26 years, Resident of Railway Colony Bina, District Sagar …Respondents --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri Umesh Pandey, Govt. Adv. for the appellant-State. Shri Surendra Singh, Senior Counsel with Shri Shivam Singh, Advocate, for the respondents. --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Date of Hearing : 15-09-2011 Date of Judgment : 10-11-2011 Criminal Appeal Nos.1049/1993 & 304/1994 Per : R.C. Mishra, J. J U D G M E N T These appeals are interlinked as preferred against the same judgment delivered on 01.10.1993 by Additional Sessions Judge, Khurai, Distt. Sagar in S.T. No.231/91. 2. In all, four persons namely Ravi, Santosh, Rakesh and Mohan (since dead) were prosecuted for murder of Anil. Santosh was charged with the offence under Section 302 of the IPC whereas charges of the offence punishable under Section 302 read with 34 of the IPC were framed against the co-accused. By the judgment under challenge, Santosh, though acquitted of the offence of murder, was convicted under Section 304 Part II of the IPC and sentenced to undergo R.I. for 7 years whereas the co-accused were acquitted of the offence charged with. 3. The appeal, bearing Cri. Appeal No.304/1994, is State’s appeal against acquittal of all the four accused in respect of the offence of murder. However, consequent to death of Mohan, impleaded as respondent no.4, the appeal has abated so far as it relates to him whereas other one, numbered as Cri. Appeal No.1049/1993, has been preferred by Santosh against his conviction and corresponding sentence as indicated hereinabove. 4. For the sake of convenience, the accused persons shall be referred to by their respective names only. 5. Prosecution story, in short, may be narrated thus – (i) At the relevant point of time, Anil (since deceased) was carrying business of liquor and food grain in Bina wherein all the four accused persons were also residing. On account of :: 2 :: Criminal Appeal Nos.1049/1993 & 304/1994 Anil’s refusal to supply liquor on credit basis, Santosh was nurturing a grudge against him. (ii) On 18.02.1991 at about 9 p.m., while returning home located near Cinema Chowraha, as Anil reached near Gurudwara, Santosh, Rakesh and Mohan came there on a motorcycle. After parking the vehicle in front of Anil, all the three got down. In the meanwhile, Ravi, the brother of Santosh, who was standing beside the nearby electric pole, also arrived. Mohan, Rakesh and Ravi caught hold of Anil's hands while Santosh took out a knife from his pant's pocket and pierced it into abdomen of Anil near umbilicus. The incident was witnessed by Mohanlal (PW1), Wahid (PW2) and Abdul Shamim Khan (PW3) [for short ‘Shamim’]. They rushed to the spot but all the four accused fled away on the same motorcycle. In a Jeep, Mohanlal, Wahid and Shamim took Anil to the police station. Upon the FIR (Ex.P-9) lodged by Anil, ASI D.P. Mahore (PW7), registered a case under Section 307 read with 34 of the IPC against all the four accused. While sending Anil to PHC Bina, the Police Officer made request to Dr. R.K. Jain as also to the Executive Magistrate Sobran Singh (CW1) for recording Anil’s dying declaration. (iii) Dr. R.K. Jain (PW9) noticed a wound on middle of Anil’s abdomen through which small intestines were protruding. He also recorded Anil’s dying declaration (Ex.P-13) in presence of Dresser Maruti Rao (PW10). After giving first medical aid, he referred Anil to Hamidia Hospital at Bhopal for surgical management of the injury. However, Anil was taken to District Hospital Sagar where he was treated by Dr. P.K. Dhagat (PW13), the Surgical Specialist. Finding that condition of Anil was deteriorating, on 27.02.1991, Dr. P.K. Dhagat referred :: 3 :: Criminal Appeal Nos.1049/1993 & 304/1994 the case to Gandhi Medical College, Bhopal for better treatment but Anil’s life could not be saved and, ultimately, on 09.03.1991, he breathed his last in the Hamidia Hospital at Bhopal. Accordingly, the case was converted into one under Section 302 of the IPC. (iv) After inquest proceedings, the dead body was sent to Medico-Legal Institute, Bhopal for post-mortem examination. In the opinion of Autopsy Surgeon namely Dr. C.S. Jain (PW6), Anil's death was caused due to cardio-respiratory failure as a result of abdominal injury and its complications. (v) During investigation, ASI D.P. Mahore inspected the spot and seized blood stained clothes worn by Anil. He was able to apprehend accused Ravi but in view of his transfer, the remaining investigation was conducted by Sub-Inspector C.K. Bhatnagar (PW12). On 20.03.1991, the Sub-Inspector apprehended Rakesh & Santosh and recovered, at the instance of Santosh, the weapon of offence viz. knife along with the shirt and pant said to have been worn by him at the time of incident. He was also able to seize bloodstained clothes upon information given by Rakesh. Mohan surrendered on 30.04.1991 and produced the clothes worn by him at the time of incident. All the seized articles were forwarded to FSL, Sagar for forensic examination. Corresponding report (Ex.P- 23) indicated that Anil’s clothes and the knife were found to contain blood. However, the Chemical Examiner forwarded only bloodstained clothes to Serologist for further examination. The Serologist could only determine presence of human blood on vest, shirt, sweater and full-pant. :: 4 :: Criminal Appeal Nos.1049/1993 & 304/1994 6. The accused abjured the guilt and pleaded false implication due to enmity arising out of political rivalry. In the examination, under Section 313 of the Code of Criminal Procedure (for short ‘the Code’), only Rakesh raised a specific plea of alibi by stating that at the relevant point of time, he was in Jaunpur where he had gone to attend a marriage ceremony. 7. The prosecution sought to prove the charges by examining as many as 13 witnesses. It was upon request of the defence that Executive Magistrate Sobran Singh (CW1) was summoned as a Court witness. No further evidence was adduced by the accused presumably in view of the following admissions made by Sobran Singh - (i) he had scribed dying declaration of Anil. (ii) Prem Rai, father of the deceased, had contested election to the State Legislative Assembly as the authorized candidate of Bhartiya Janta Party, the Party in power and (iii) one Mr. Bapat, a local resident, was one of the Ministers in the erstwhile State Cabinet. 8. Let us first deal with the appeal against conviction and conse- quent sentence awarded to Santosh. 9. Legality and propriety of the conviction have been challenged on the following grounds – (i) Same set of evidence that was not found sufficient to substantiate the charges against the co-accused could not have formed basis of Santosh’s conviction. (ii) The dying declarations in the form of – :: 5 :: Criminal Appeal Nos.1049/1993 & 304/1994 (a) FIR (Ex.P-9) and the statement under Section 161 of the Code (Ex.P-16) said to have been recorded by ASI D.P. Mahore (PW7) at the instance of Anil (since deceased). (b) Statement (Ex.P-13) said to have been recorded by Dr. R.K. Jain (PW9) as per history given by Anil only, reflecting complicity of the appellant in the murder, - were apparently doubtful in view of suppression of the Anil’s dying declaration claimed to have been recorded by the Executive Magistrate Sobran Singh (CW1) in the hospital at Bina, upon the application (carbon copy of which was placed on record as Ex.P14) made by ASI D.P. Mahore (PW7). (iii) The ocular evidence was also shrouded with doubt as on one hand, no witness residing in close vicinity of the spot was examined and on the other, statements of Mohanlal (PW1), Wahid (PW2) and Shamim (PW3), who were apparent- ly interested witnesses, suffered from serious infirmities. In reply, learned Government Advocate, while making refer- ence to the incriminating pieces of evidence, has submitted that Santosh ought to have been held guilty of murder. 10. Before entering into merits of the rival contentions, it would be necessary to first advert to the medical evidence on record. 11. Dr. R.K. Jain (PW9), who had the occasion to examine Anil immediately after the incident, proved existence of an abdominal injury. According to him, he noticed a wound on the middle of Anil’s :: 6 :: Criminal Appeal Nos.1049/1993 & 304/1994 abdomen through which small intestines were lying outside and also found a cut on the small intestine. He described condition of Anil in the following words – “Patient is conscious, replying to questions, pulse 100 per minute, Blood pressure 70/9 mm Hg” Dr. R.K. Jain (PW9) was cross-examined at length but no question was asked as to the nature and situs of the injury described in his report (Ex.P-11). His cross-examination was focused at the condition of Anil at the time of recording of the dying declaration (Ex.P-13), relied on by the prosecution. 12. Dr. P.K. Dhagat (PW13), the surgical specialist, testified that, before being shifted to Gandhi Medical College, Bhopal, Anil had remained admitted to Civil Hospital at Sagar till 1.30 a.m. of 28.02.1991. His report dated 26.02.1991 (Ex.P-20), relevant papers (Ex.P-20A), letter (Ex.P20-B) reflecting that on 27.02.1991, he had referred Anil for better treatment at the Medical College and the case sheet (Ex.P-20C) were also placed on record. Contents of the report may be reproduced as under - “Injuries were dangerous to life and patient is still very serious and chances of death in near future cannot be denied. He is in intensive surgical care.” 13. Dr. C.S. Jain (PW6), who conducted the post mortem, described injuries noticed on the dead body in the following words – (i) A laparotomy wound starting from xiphisternum to 7 cm above of umbilicus present in the midline of the body. On the right side of abdomen, transversely placed a stitched wound present 7 cm in length. Skin in there having gap of 0.5 cm, loop of intestine visible from gap, muscles soft, on opening the wound abdominal cavity is emitting foul smell & creamish pus present, loop of intestines matted together at places. :: 7 :: Criminal Appeal Nos.1049/1993 & 304/1994 Loop of small intestine corresponding to transversely placed wound is also stitched & stitches are open and so loop/cavity is open, margins are softened, stitches present at margins. (ii) An infected wound with irregular margins present on right lateral aspect of abdomen 7.5 cm above anterior superior iliac spine 4 x 3 cm. (iii) An infected wound present on left lateral aspect of abdomen, 7 cm above anterior superior iliac spine 3 X 2 cm from abdominal, 2 & 3 wounds, foul smelling fluid oozing out. The autopsy surgeon categorically opined that the death was caused due to cardio-respiratory failure as a result of abdominal injury and its complications. In the cross-examination, no dispute was raised as to the cause of death. 14. In the light of the medical evidence, learned trial Judge rightly held that Anil’s death was homicidal in nature. 15. Coming to the ocular evidence, it may be observed that statements of Mohanlal (PW1), Wahid (PW2) and Shamim (PW3) were consistent as to the role played by Santosh in causing Anil’s death. They were unanimous in saying that Santosh had authored the knife injury which had ultimately proved fatal to Anil. It is true that their evidence suffered from certain contradictions and omissions but these infirmities related to respective roles ascribed to the co-accused. 16. It is trite that relationship is not a factor to affect credibility of a witness. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible (See. Sucha Singh v. State of Punjab AIR 2003 SC 3617). Obviously, being the brother-in-law, Mohanlal was interested in bringing the real culprit to book. He was cross-examined with reference to the :: 8 :: Criminal Appeal Nos.1049/1993 & 304/1994 contents of his police statement (Ex.D-4) and the statement recorded by Magistrate under Section 164 of the Code (Ex.D-1), but nothing inconsistent with his categorical assertion that Santosh, after drawing a knife, had pierced it into abdomen of Santosh, could be elicited. Further, his statement drew adequate corroboration from the testimony of Wahid (PW2) and Shamim (PW3) that also did not suffer from any apparent contradiction with regard to the role attributed to Santosh as reflected in their previous statements (Ex.D- 6/D-2 and Ex.D-5/D-3) respectively. Their evidence could not be discarded simply because their statements were recorded by the Magistrate under Section 164 of the Code (Ram Charan v. State of U.P. AIR 1968 SC 1270 relied on). The eyewitness account, therefore, was rightly considered as clear, cogent and creditworthy so far as it related to Santosh. 17. The ocular evidence as to complicity of Santosh in the crime was in conformity with the contents of Anil’s dying declarations recorded as the FIR (Ex.P-9), case diary statement (Ex.P-16) and the dying declaration (Ex.P-13). However, while placing reliance on the decision of the Apex Court in State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri (2006) 7 SCC 172, learned Senior Counsel has submitted that mere suppression of the dying declaration recorded by Executive Magistrate Sobran Singh (CW1) would be sufficient to raise suspicion about veracity of the prosecution version. The relevant observations read - “It is now well settled that when a document being in possession of a public functionary, who is under a statutory obligation to produce the same before the court of law, fails and/or neglects to produce the same, an adverse inference may be drawn against him. The learned Special Judge in the aforementioned situation was enjoined with a duty to draw an adverse inference. He did not consider the question from the point of view of statutory requirements, but took into consideration factors, which were not germane”. :: 9 :: Criminal Appeal Nos.1049/1993 & 304/1994 18. The core question, therefore, is as to whether learned trial Judge committed any illegality in rejecting evidence of Sobran Singh, the Executive Magistrate (CW1), to the effect that he had recorded Anil’s dying declaration, as unworthy of credence. 19. Dr. R.K. Jain (PW9), being in-charge of Primary Health Centre, Bina, did not support the statement of Sobran Singh as to recording of the dying declaration. He was emphatic in stating that by the time, Sobran Singh came to the hospital, Anil had already been shifted from there for being treated at a higher center. He categorically denied the suggestion that Sobran Singh had recorded a dying declaration in his presence. According to him, he had received copy of application (Ex.P-14) made to the Executive Magistrate at 11 p.m. and had returned the same to the Investigating Officer after making an endorsement that Anil was not in the hospital. 20. In these circumstances, particularly for want of any supportive documentary evidence in the form of order-sheet/memorandum/ endorsement on the original application, no reliance could be placed on the testimony of Sobran Singh. As such, the question deserves to be answered in the negative. 21. Dr. R.K. Jain also refuted the plea that Anil was not conscious while giving the dying declaration (Ex.P-13). Since the person recording the statement was himself a medical expert, absence of certificate as to fitness of Anil to make the statement did not assume any significance. Further, the attesting witness of the dying declaration viz. dresser Maruti Rao (PW10) also came forward to support the fact that Anil had remained conscious during recording thereof. This apart, as pointed out by the Constitution Bench in Laxman v. State of Maharashtra AIR 2002 SC 2973, even :: 10 :: Criminal Appeal Nos.1049/1993 & 304/1994 absence of doctor’s certification as to fitness of the declarant’s state of mind would not, ipso facto, render the dying declaration unacceptable because such a certification is essentially a rule of caution. Dr. R.K. Jain was apparently a disinterested person and there was no ground to doubt the veracity of the dying declaration recorded by him. 22. ASI D.P. Mahore (PW7) asserted that he not only scribed the FIR (Ex.P-9) but also case diary statement (Ex.P/16) as per informa- tion given by Anil only. In his cross-examination, he further revealed that Anil’s police statement was recorded by him at 10.30 p.m. in the hospital. The FIR reflected that it was recorded at 9.30 p.m. Ac- cording to him, Anil had remained at the Police Station for about 5 minutes. He categorically denied the suggestion that both FIR and the police statement were recorded subsequently. As indicated already, there was a positive and reliable evidence of Dr. R.K. Jain that Anil remained conscious and able to communicate for a consid- erable period of time after receiving the injury. The FIR and the po- lice statement recorded by ASI D.P. Mahore could safely be re- garded as dying declarations (See. Munnu Raja v. State of M.P. (1976) 3 SCC 104 and Tapinder Singh v. State of Punjab, (1970) 2 SCC 113). 23. It is well settled that if there are more than one dying declarations, the court has to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same (Kundula Bala Subrahmanyam v. State of A.P. (1993) 2 SCC 684 referred to). :: 11 :: Criminal Appeal Nos.1049/1993 & 304/1994 24. Since all the dying declarations were consistent in substance, as to the complicity of Santosh in causing death of Anil by inflicting the knife injury on abdomen, contents thereof were rightly taken into consideration for holding him guilty. 25. The argument that Santosh’s conviction was not sustainable on the same set of evidence, which suffered from factual and legal infirmities leading to acquittal of all the three co-accused namely Ravi, Rakesh and Mohan also warrants rejection as the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything) has no application in India. It is the duty of the Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient, or to be not wholly credible. In a given case, it is always open to a Court to differentiate accused who had been acquitted from those who were convicted where there are a number of accused persons (See. Gurucharan Singh v. State of Punjab AIR 1956 SC 460). 26. To sum up, in the face of the overwhelming incriminating evidence on record, the finding that it was Santosh who had inflicted the injury that ultimately proved fatal to Anil does not call for any interference. 27. Now, the question that arises for consideration is as to what was the offence committed by Santosh ? 28. As noticed already, learned Government Advocate has submitted that the appellant Santosh ought to have been convicted for the offence of murder. For this, our attention has been drawn to the fact that the abdominal injury received by Anil was characterized as dangerous to life by the Surgical Specialist Dr. P.K. Dhagat (PW13). :: 12 :: Criminal Appeal Nos.1049/1993 & 304/1994 29. In response, learned Senior Counsel has strenuously contended that in any case, the offending act attributed to Santosh would not come within the definition of murder as – (a) None of the doctors examined by the prosecution opined that the injury was sufficient in the ordinary course of nature to cause death of Anil. (b) The death had occurred nearly 19 days after the incident in question and cause of death was ascertained as cardio-respiratory failure as a result of abdominal injury. (c) The medical evidence was silent as to depth of the injury. 30. In support of the argument, the following precedents have been cited - (i) Harish Kumar v. State (Delhi Administration) AIR 1993 SC 973 (ii) Rajangam v. State of T.N. AIR 1993 SC 2636 (iii) Ram Jattan v. State of U.P. AIR 1994 SC 1130 31. In Harish Kumar’s case, the deceased had died 2 days after infliction of injuries whereas in Rajangam’s case, the deceased, after undergoing operation, had breathed his last 8 days after the incident and in Ram Jattan’s case, the medical expert did not certify the injury as sufficient to cause death in the ordinary course of nature. In all these cases, the accused had been held guilty of the offence under Section 304 Part II only. 32. In the wake of the well-settled position of law on the subject, appellant Santosh was rightly held guilty of the offence of culpable homicide not amounting to murder punishable under Section 304 Part II of the IPC. The State’s appeal against his acquittal for the offence of murder, therefore, does not deserve acceptance. Further, :: 13 :: Criminal Appeal Nos.1049/1993 & 304/1994 in the factual scenario projected from the evidence on record, the corresponding sentence also does not call for any interference. 33. For these reasons, we are of the considered opinion that the appeal against conviction has no merit or substance. 34. Turning to the State’s appeal against the order of acquittal of Ravi and Rakesh, it may be observed that the same is based on the following grounds - (i) The FIR (Ex.P-9), police statement of Anil (Ex.P-16) and his dying declaration (Ex.P-13) clearly indicated that all the four accused shared a common intention to kill him and in furtherance of the common intention, the other three accused namely Ravi, Mohan and Rakesh caught hold of the hands of Anil whereas Santosh dealt a knife blow into Anil’s abdomen. (ii) All the three eye-witnesses namely Mohanlal, Wahid and Shamim duly corroborated the prosecution case. (iii) Since it was proved from the evidence on record that Santosh, Rakesh and Mohan came together on a motorcycle to the spot where Anil was already standing and all the four accused had fled away on the same motorcycle, learned Judge ought to have been held that they were sharing a common intention to kill Anil. 35. In reply, learned Senior Counsel representing Ravi and Rakesh, has made extensive reference to the reasons given by learned trial Judge for arriving at finding of not guilty. He is further of the view that even if the evidence upon which acquittal order was founded is re-appreciated, the outcome would remain unaltered in :: 14 :: Criminal Appeal Nos.1049/1993 & 304/1994 the face of serious infirmities as pointed out in the judgment coupled with the following facts – (a) no motive for causing death of Anil could be attributed to these accused. (b) the ocular as well as medical evidence suggested existence of only a single knife injury. 36. Material contradictions in the testimony of the eyewitnesses with regard to role allegedly played by each one of the associates of Santosh may be examined under the following heads - EXHORTATION GIVEN TO SANTOSH 37. Mohanlal (PW1), in his sworn testimony, categorically asserted that Ravi had exhorted Santosh to kill Anil. However, his police statement (Ex.D-4) reflected that such an exhortation was given by all the three companions of Santosh.