RAJKUMAR Vs. STATE OF M.P.

JUDGEMENT

(1.) APPELLANTS -Rajkumar, Dilip and Bhim Singh -are aggrieved by the judgment dated 10.1.1997, rendered in S.T. No. 133/1993, by Ist Addl. Sessions Judge, Dhar, convicting them u/S. 302/34 of I PC and sentencing them each to undergo imprisonment for life. Briefly stated the case of the prosecution at the trial was that on 31.12.1992, around 9.30 to 10.00 O'clock in the night, deceased Padamsingh accompanied by his brother Vijaysing (PW 1) was on his way from his father's house at kumhar Gadha, Dhar, to his house at Nogaon Dhar, when accused appellants in Bhoi Mohalla, attacked him by means of Sword, Dharia and Pharsa. He was severely injured and fell down in a nearby drainage. An anonymous phone call was received at P.S. Dhar about the incident and whereupon the police reached the spot, shifted Padamshingh to the local Civil Hospital, where F.I.R. (Ex. P/11) was recorded at his instance. However, the deceased succumbed to his injuries the next day (1/1/1993). The police registered a crime u/S. 302/34 of IPC, conducted inquest u/S. 174 Cr. P.C., prepared spot map, got the autopsy of the body of the deceased performed, arrested the accused appellants, recovered arms allegedly used by them in the incident and after other usual investigation, charge sheeted the appellants for trial which ended into their conviction and sentence as aforesaid. We have heard Shri Jaisingh, learned counsel for appellants and Shri G. Desai, Dy. AG for respondent -State. There is no dispute that deceased Padamsingh was murdered in the early hours of the night of 31st December, 1992. In fact, that part of the prosecution case is not controverted by the appellants. The dispute centres around the identity of the appellants as assassins of the deceased.

(2.) THIS takes us to the merits of the case. Prosecution case is based mainly on the FIR (Ex. P/11) allegedly lodged by the deceased himself and treated as his dying declaration; and the ocular evidence of Vijaysingh (PW 1), the brother of the deceased, who testified that at the relevant time he accompanied his deceased brother who was attacked by the appellants by means of Sword, Dharia and Pharsa. Shri Jaisingh, learned counsel for the appellants has strongly criticised this witness Vijaysingh and contended that he told lies in the witness box. FIR (Ex. P/11) was also attacked severely and it was submitted that this piece of evidence was equally untrustworthy. Taking the FIR (Ex. P/11) first, it may be noted at the outset that normally a FIR is not a substantive piece of evidence and its evidentiary value is only of corroborative nature. However, in the instant case, it has been treated as dying declaration of the deceased relied upon heavily by the prosecution as also by the trial court as substantive piece of evidence to hold the appellants guilty for the said murder. Legally, such a report by a deceased person can be relied upon, even without corroboration, as a substantive evidence u/S. 32 of the Evidence Act, of the cause of death of its maker. However, the legal position remains unaltered that such a dying declaration should be scrutinised very carefully, keeping in view the attending circumstances and can be acted upon only if the Court is satisfied that it was wholly true being free from any kind of doubt. Inspector Shivraj Singh (PW 7) has proved this report Ex. P/11, which he stated, was recorded by him at District Hospital, Dhar, where the deceased was brought for treatment after being seriously injured in the incident. He explained that since the deceased was unable to sign this report because of his injuries, his thumb impression was obtained on it. We have very carefully examined this document Ex. P/11 and we find that it is not free from reasonable doubts. The first and most important suspicious circumstance is the timing of recording of this report. As per this report, it was recorded 9.50 pm. in the Hospital. The incident is said to have taken place around 9.30 to 10.00 O'clock in the night. As per Rojnamcha entries of P.S. Dhar (vide Exs. P/16, 17 and 18) which were got exhibited in evidence during hearing of this appeal, the information regarding the incident in question was first received through an any onymous an phone call at Police Station, Dhar, at 9.50 p.m. The Police party which did not include Inspector Shivraj Singh (who was reportedly out in the town) left for the spot about a Kilometre away, saw the deceased lying severely injured in a drainage, shifted him to the Hospital, informed the Inspector on the wireless set and it was then that Inspector Shivraj Singh reached the Hospital and could record the report Ex. P/11 at the instance of the deceased. Naturally all these would take sometime and it was not only improbable but impossible to record this report Ex. P/11 at 9.50 pm when as per the Rojnamcha reports above, the police was still at the police station and the Inspector out (sic) in the town. It is patent, therefore, that this report was ante -timed rendering it a suspicious piece of document.

(3.) YET another suspicious circumstances no less important is the fact that this report is recorded in the register of FIR kept at the Police Station and which is not supposed to be taken out of the Police Station. Normal practice is that when any such report is required to be recorded outside the Police Station, it is recorded on a plane paper as 'Dehati Nalishi' which later on is entered in the register of FIR as also in the Rojnamcha of the Police Station. It would not be, therefore, unreasonable to infer that in fact this report Ex. P/11 was prepared subsequently at the Police Station itself and probably that was the reason as to why signature of the informant deceased could not be obtained on it. This is reinforced by the M.L.C. report Ex. P/1 recorded and proved by Dr. B.R. Upadhyay (PW 3) at 10.50 p.m. It appears that the deceased was brought to Hospital around 10.50 pm. and there was thus no occasion to record the FIR (Ex. P/11) at 9.50 pm. The deceased had no injury on his upper limbs. His injuries were confined to the head and the lower limbs and as per statement of Dr. Upadhyay (PW 3) he was wholly conscious when he was first examined by him at 10.50 pm. If that was so, there was no reason why signature of the deceased (who as per his brother's testimony, was semi -literate), could not be obtained on Ex. P/11. This leads us to believe that in fact this report Ex. P/11 was prepared after the death of the deceased or at least after he had gone in coma, thus making it impossible for the police to obtain his signature. It is well settled that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was not time or facility available to the prosecution for adopting any better method (see : Dalip Singh, AIR 1979 SC 1173). In the instant case, as per prosecution's own showing the deceased was wholly conscious when he was brought to Hospital and examined by the Doctor. He died sometime on the following day. The police thus had sufficient opportunity to get his dying declaration recorded by a Magistrate or at least by a Doctor which could inspire more confidence. Not even any attestation was obtained from the treating Doctor on this document to show that the deceased was in senses while making this statement. No explanation has been furnished as to why better and more reliable method of recording of dying declaration was not taken recourse to. This again renders doubtful the dying declaration Ex. P/11 recorded by the police.