Pappu @ Dayaram vs The State Of Madhya Pradesh
2021 Latest Caselaw 2091 MP

                                                        CRA No.949/2012

                               (1)


High Court of Madhya Pradesh: Bench at Indore

Case Number                  Criminal Appeal No.949/2012
Parties Name                         Pappu @ Dayaram
                                             Vs.
                                        State of M.P.
Date of Judgment     03/06/2021
Bench                Division Bench:
                     Justice Sujoy Paul
                     Justice Rohit Arya
Judgment delivered   Justice Sujoy Paul
by
Whether approved    YES
for reporting
Name of counsel for Shri. Tarun Kushwaha, learned counsel for
parties             appellant.

                     Ms.Archana Kher, learned Dy.A.G. for
                     respondent/State.
Law laid down            *Section 32 of Indian Evidence Act -
                     Dying Declaration-The conviction can be
                     based solely on the basis of an oral dying
                     declaration provided such declaration is free
                     from any doubt and its correctness and
                     genuineness is out of question.
                        *Multiple Dying Declarations- If there are
                     more than one dying declaration, Court needs
                     to examine qualitative worth of each
                     declaration and not number of declarations.
                         The dying declaration must be examined
                     with utmost care and caution because the
                     maker of such declaration cannot be put to
                     cross-examination.
                       *Inconsistencies in two Dying Declarations
                     - In the first declaration, deceased did not take
                     anybody's name and stated that two unknown
                     persons assaulted and thrown him in the well
                     whereas in the second declaration, he took the
                     name of appellant and three unknown persons
                     for committing said act. This is material
                     inconsistency and contradiction between two
                     dying declarations which causes serious dent
                     on the story of prosecution.
                         *Appreciation of Evidence- It was the
                                                          CRA No.949/2012

                                 (2)


                       minimum expectation from the Court below to
                       assign reasons if one dying declaration is
                       found to be trustworthy and another is
                       discarded. Adequate and justifiable reasons
                       should have been given for accepting one
                       declaration and discarding another which
                       exercise is totally missing.
                            *Effect of not declaring the PW.1 as
                       hostile- Dhansingh (PW.1) is an independent
                       witness before whom first dying declaration
                       was given. He was not declared as hostile.
                       There was no reason to disbelieve his
                       statement.
                           *Last Seen Theory - It is not prudent to
                       base the conviction solely on last seen theory.
                       There must be something more establishing
                       connectivity between commission of crime and
                       the accused.
                         *Benefit of Doubt- The impugned judgment
                       is based on second dying declaration and last
                       seen theory. The second dying declaration was
                       found to be not trustworthy and last seen
                       evidence was also a weak piece of evidence.
                       Thus, appellant is given the benefit of doubt
                       and impugned judgment is set aside.
Significant            12,13,15,16,18,20,21,22,23,24
paragraph numbers
                          JUDGMENT

(Delivered on 03rd June, 2021) Sujoy Paul, J.:

This Criminal filed u/S.374 of Cr.P.C assails the judgment of 1 st

Additional Sessions Judge (Fast Track Court), Narsinghgarh, District

Rajgarh in Sessions Trial No.223/2011, dated 26/07/2012 whereby the

appellant was held guilty for the offence u/S.302 of the IPC and

sentenced to undergo life imprisonment with fine of Rs.5000/- and in

default of payment of fine he shall further undergo six month's RI.

[2] Draped in brevity, the case of the prosecution is that the

appellant has assaulted and thrown deceased Bhupendra in a well CRA No.949/2012

between 26/4/2011 and 27/4/2011. Bhupendra was found alive by the

villagers at Sonkatch (Narsingharh). The intimation was given to

Kesri (PW.2), real brother of deceased Bhupendra. In turn, Dhansingh

(PW.1), an independent witness and Kesri (PW.2) reached to the place

of incident and found that villagers are trying to rescue Bhupendra

who is found injured inside the well. In turn, Bhupendra was taken

out of the well. Bhupendra died after some time. As per prosecution

story, Kesri (PW.2) took him in injured condition to hospital in a Jeep.

While travelling between the place of incident and hospital,

Bhupendra informed Kesri (PW.2) that he was assaulted by Pappu @

Dayaram (appellant) and three other persons. He further stated that

Pappu who is brother-in-law of deceased assaulted him but three other

persons who accompanied Pappu were not known to him.

[3] Before the Court below 15 prosecution witnesses entered the

witness box and deposed their statements. The appellant abjured his

guilt. Nobody entered the witness box on behalf of the accused.

[4] The Court below has considered the statement of wife of

deceased Pragbai (PW.3) and Devchand (PW.10) wherein they stated

that Bhupendra was taken by Pappu in his motor cycle on 26/4/2011

on the pretext that they have to distribute marriage card of appellant's

brother. Thereafter Bhupendra could be traced only on 28/4/2011 and

he died on the same day. These two witnesses were introduced by

prosecution in order to show that the deceased was last seen with

Pappu by the said witnesses.

CRA No.949/2012

[5] Dr.Sandeep Narayani (PW.13) deposed his statement on the

basis of postmortem report and stated that 18 injuries were found on

the person of Bhupendra (which are mentioned in para 20 of the

impugned judgment). PW.13 further stated that reason of death is

head injury and failure of respiratory system and other complications.

This witness proved his communication with concern police station

Ex.P/17 which was duly signed by him.

[6] The Court below treated the statement of Kesri (PW.2) as oral

dying declaration. On the basis of last seen evidence and aforesaid

dying declaration, the court below opined that prosecution has proved

its case beyond reasonable doubt and resultantly convicted and

sentenced the appellant for committing offence u/S.302 of IPC.

[7] Shri Tarun Kushwaha, learned counsel for appellant urged that

Dhansingh (PW.1) is an independent witness who categorically

deposed that when he along with other persons reached to the place

of occurrence i.e. the well in Sonkatch, he found that Bhupendra is

lying inside the well. With the help of villagers, Bhupendra was taken

out of the well. By this time, real brother of Bhupendra, Kesri (PW.2)

also reached to the place of incident. Bhupendra informed Dhansingh

(PW.1) that two unknown persons of Beenaganj had thrown him in the

well. This intimation was given by Bhupendra to Dhansingh (PW.1)

only. By taking this Court to the cross examination, learned counsel

for appellant submits that PW.1 clearly stated that only two unknown

persons have thrown him in the well. The reliance is placed on the CRA No.949/2012

statement of Kesri (PW.2) to contend that this witness who is real

brother of deceased narrates a different story. This witness deposed

that when he carried injured Bhupendra in a Jeep to the hospital, he

asked him as to who assaulted him. In turn, Bhupendra informed him

that his brother-in-law (appellant) along with three unknown persons

assaulted him and thrown him in the well. Before reaching hospital,

Bhupendra died. He further deposed that Bhupendra was taken by the

appellant on 26/4/2011 from his house. The contention of learned

counsel for appellant is that both the dying declarations are not in tune

with one another. It was not proper on the part of court below to

totally ignore the first dying declaration given to PW.1 and solely rely

on the second dying declaration given to the relative (PW.2). By

placing reliance on (1999) 8 SCC 458 (Heikrujam Chaoba Singh Vs.

State of Manipur) and 2016 Cr.L.J. 2939 (Rambraksh alias Jalim v.

State of Chhattisgarh), it is urged that there are serious

inconsistencies in both the dying declarations. The court below has

committed an error in passing the impugned judgment on the basis of

'last seen' and second dying declaration alone. It is further urged that

'merg' intimation (Ex.P.22) which is recorded on the basis of

information given by Kesri (PW.2), clearly shows that Bhupendra

died because he fell down in the well. It is not mentioned that

anybody either assaulted or thrown the deceased in the well. For the

same purpose, reliance is placed on the communication (Ex.P.17) of

Dr. Narayani (PW.13) to concerned police station wherein the same CRA No.949/2012

reason of death is mentioned by the treating doctor. On the strength of

these documents, Shri Kushwaha submits that had it been a case of

assault and throwing the deceased in the well by the present

appellant, Kesri would have informed this reason while recording of

'merg' intimation. Thus, dying declaration allegedly given by

Bhupendra to Kesri (PW.2) is not corroborated by any material

whatsoever and it is not worthy of credence.

The learned counsel for the appellant further contends that

Dhansingh (PW.1) before whom oral dying declaration was given by

deceased was not declared as a hostile witness. Thus, his statement

could not have been discarded and disbelieved. When there are

multiple dying declarations, the dying declaration which is in favour

of the accused should be relied upon. The reliance is placed on (1999)

8 SCC 458 (Heikrujam Chaoba Singh Vs. State of Manipur), 1992

SC 223 (Kamla vs. State of Punjab), 2014 SCC OnLine MP 8652

(Guddi Bai vs. State of MP) and 2011(1) MPHT 50 Jugal @ Shabbir

Khan. Attention of this Court is also drawn on the statement of Dr.

Sandeep Narayani (PW.13), who conducted the postmortem and

deposed that the injuries found on the person of deceased could have

been caused because of falling in the well. Statement of RP Pathak

(PW.15), Investigation Officer is relied upon to contend that this

witness clearly stated that Kesri (PW.2) did not inform him about any

oral dying declaration being given to him by deceased Bhupendra. In

absence of any motive and previous animosity between appellant and CRA No.949/2012

deceased, who are close relatives, the appellant could not have been

held guilty for committing murder.

[8] Criticizing the impugned judgment on the basis of last seen

theory, learned counsel for appellant submits that as per wife of

deceased Pranbai (PW.3) and Devchand (PW.10), the deceased was

taken for distributing marriage invitation card by appellant on

26.4.2011. Thereafter there exists no evidence to show that he

remained with the appellant for next two days. In absence of any

corroboration, the last seen theory is not sufficient to hold the

appellant as guilty. Further more, as per statement of Dhansingh

(PW.1) and Kesri (PW.2) more than one person were involved in the

offence. Police has not made any effort to investigate the matter

regarding involvement of other persons. In absence of any

corroboration and in view of time gap between the date Bhupendra

was allegedly taken by appellant and the date when he was found, last

seen theory cannot be the sole basis to convict the appellant. In

support of aforesaid submissions, the appellant has also filed the

written submissions.

[9] Sounding a contra note, Ms.Archana Kher, learned Dy.A.G

supported the impugned judgment. She submits that although there

was no eye witness to the incident, the case of prosecution was based

on last seen theory and the dying declaration of Bhupendra given to

Kesri (PW.2). The Court below has not committed any error in

appreciating the evidence and has rightly passed the impugned CRA No.949/2012

judgment.

[10] Parties confined their arguments to the extent indicated above.

[11] We have bestowed our anxious consideration on rival

contentions and perused the record.

ORAL DYING DECLARATION:

[12] As noticed above, the impugned judgment of conviction is

based on the oral dying declaration of Bhupendra given to Keshri

(PW.2) and last seen evidence based on deposition of wife of deceased

Pragbai (PW.3) and Devchand (PW.10). This is trite that conviction

can be recorded solely on the basis of a dying declaration or even on

the basis of an oral dying declaration. However, such dying

declaration should be free from any doubt and must pass scrutiny of

reliability. [See: Heikrujam Chaoba Singh Vs. State of Manipur

(supra)]. It is equally settled that it is qualitative worth of a

declaration and not plurality of declaration which matters. [See:

(2004) 13 SCC 314 (State of Maharashtra vs. Sanjay D. Rajhans)]

[13] In the instant case, as per prosecution story, there are two oral

dying declarations given by Bhupendra to Dhansingh (PW.1) and

Kesri (PW.2). In the first dying declaration, the deceased did not take

the name of appellant or anybody else. He categorically stated that he

was assaulted and thrown in the well by two unknown persons.

Pertinently, this independent prosecution witness was not declared

hostile by the prosecution. In a case of this nature where there are

multiple dying declarations, the trial Court was under an obligation to CRA No.949/2012

examine each one with accuracy and precision. Adequate reasons

were required to be given if any dying declaration is given preference

over the other. Putting it differently, if second dying declaration was

relied upon and believed, adequate reasons ought to have been

assigned as to why first one could not inspire confidence and worthy

of credence. The Court below has miserably failed to undertake

aforesaid exercise and mechanically relied upon the second dying

declaration.

[14] The dying declaration is required to be examined very carefully,

because the maker of the statement is not alive and cannot be put to

cross-examination. In this backdrop, the dying declaration must be

examined with utmost care and caution. [See: Kamla vs. State of

Punjab (supra)].

[15] If both the dying declarations are examined in juxta position, it

will be clear that there are glaring inconsistencies and contradictions.

In the first dying declaration, nobody's name was taken and number of

persons, who were involved in commission of crime were stated to be

two, whereas in the second dying declaration, the name of appellant

was taken with three more unknown persons who were

accompanying the present appellant. This, in our view shows serious

inconsistency and contradiction in the dying declaration which makes

the second dying declaration as doubtful. In the case of Kamla and

Heikrujam Chaoba Singh (supra), the Apex Court interfered with the

impugned judgment because of inconsistencies in the dying CRA No.949/2012

declarations. Same is the view taken by Division Bench of this Court

in the case of Guddi Bai (supra). Another Division Bench in Jugal

@ Shabbir Khan (supra) opined that if there are more dying

declarations than one and on the material points they are contradictory

to each other, certainly, the benefit will go to the accused and

authenticity could not be attributed to the said dying declarations. It

was further held that no reliance can be placed upon such dying

declarations to hold the appellant as guilty.

[16] Thus, in our view, the Court below has erred in recording

conviction on the basis of second dying declaration. The first dying

declaration was given to Dhansingh. The prosecution did not declare

PW.1 as a hostile witness. This is settled law that if a witness is not

declared hostile by the prosecution, the benefit of such evidence

should go to the accused and not to the prosecution. (See (2005) 5

SCC 272 Raja Ram Vs. State of Rajasthan). This principle was

followed in AIR 2013 SC 2519 Safi Mohd. Vs. State of Rajasthan. A

division bench of this Court in 2009(2) MPHT 313 (State of M.P. Vs.

Munshilal) followed the ratio decidendi of Raja Ram (supra) and

opined that the prosecution is bound by the statement of a prosecution

witness who was not declared as hostile. For this reason, the

statement of PW.1 and first dying declaration was worthy of credence

and could not have been ignored and discarded. More so when

admittedly Dhansingh (PW.1) was an independent witness whereas

Kesri (PW.2) was real brother of deceased.

CRA No.949/2012

[17] Apart from this, while recording 'merg' intimation, Kesri (PW.2)

did not inform the hospital authorities regarding any assault or the

incident of throwing the deceased in the well by anybody. Indeed, he

informed that Bhupendra fell into the well. This Court in 2013 SCC

Online MP 2491 (Karan Vs. State of M.P.) opined that in the murg

intimation the star prosecution witness mentioned that the offence was

committed by "one person", without disclosing his name whereas in

his later deposition, he took the name of said person by stating that

said person was known to him. Since name of that person was not

taken in the murg intimation, the statement of said witness was found

to be not trustworthy.

[18] In the case of Ramsai and others Vs. State of MP (AIR 1994

SC 464), the trial court relied only on evidence of one prosecution

witness namely PW.29 and discarded the other statements.

Interestingly, in the said case, PW.29 did not inform anybody about

the alleged oral dying declaration and it is only on that day he

disclosed it to the police inspector. Since no explanation was given as

to why he has not informed anybody earlier, the Court disbelieved his

statement. It was poignantly held that the dying declaration is no

doubt an important piece of evidence, but it should be free from all

infirmities. In cases of inconsistencies and contradictions in dying

declarations there must be some corroboration. The Apex Court

opined that it will be highly unsafe to base the conviction on the basis

of oral dying declaration in view of aforesaid infirmity.

CRA No.949/2012

[19] Apart from the above, RP Pathak (PW.15), I.O. in his cross-

examination clearly admitted that Kesri (PW.2) did not inform him

about any oral dying declaration during investigation. No other

prosecution witness supported the statement of Kesri (PW.2)

regarding second dying declaration. Thus, for the cumulative reasons

mentioned herein-above, the second dying declaration could not have

been relied upon by the Court below to convict the appellant.

LAST SEEN THEORY:

[20] Another reason for convicting the appellant is based on "last

seen theory". As noticed above, as per deposition of wife of deceased

Pragbai (PW.3) and Devchand (PW.10), appellant took the deceased

with him on 26/4/2011 and he was found injured in a well on

28/4/2011. There is no iota of material/evidence to show what

happened during these two days.

[21] The Apex Court in the case of Rambraksh @ Jalim (supra)

clearly held that to record a conviction, the last seen together itself

would not be sufficient and the prosecution has to complete the chain

of circumstances to bring home the guilt of the accused. In this case

also, the independent prosecution witnesses did not support the

prosecution story, and, therefore, the judgment of conviction was

turned down.

[22] In Nizam Vs. State of Rajasthan (2016) 1 SCC 550, it was

ruled that it is not prudent to base the conviction solely on "last seen

theory". The said theory should be applied taking into consideration CRA No.949/2012

the case of prosecution in the entirety and keeping in mind the

circumstances that precede and follow the point of being so last seen.

Similarly in Kanhaiyalal Vs. State of Rajasthan (2014) 4 SCC 715, it

was held that the circumstance of last seen together does not by itself

and necessarily lead to the inference that it was the accused who

committed the crime. There must be something more establishing

connectivity between the accused and the crime. In Ramreddy

Rajesh Khanna Reddy (2006) 10 SCC 172 which was followed in

State of Goa Vs. Sanjay Thakran (2007) 3 SCC 755, it was

poignantly held that even in the cases where time gap between the

point of time when the accused and deceased were last seen alive and

when the deceased was found dead is too small, the possibility of

other person committing the offence cannot be ruled out.

[23] In view of the principles laid down by Supreme Court in the

aforesaid judgments, there is no cavil of doubt that last seen evidence

in the present case is a weak piece of evidence and on the basis of this

theory alone conviction cannot be affirmed. More so when the second

dying declaration given to Kesri (PW.2) does not inspire confidence

and there exists serious inconsistencies in two dying declarations.

[24] In view of foregoing analysis, we are unable to countenance the

impugned judgment. In our view, the prosecution could not establish

its case beyond reasonable doubt and Court below has clearly erred in

recording conviction on the basis of last seen theory and second dying

declaration. In our view, it is a fit case of giving benefit of doubt to CRA No.949/2012

the appellant. Resultantly, impugned judgment passed in Sessions

Trial No.223/2011 is set aside. If appellant's presence in the custody

is not required for any other offence, he be released forthwith.

[25] The appeal is allowed.

     (Sujoy Paul)                                    (Rohit Arya)
        Judge                                           Judge



  vm/soumya



Digitally signed by
VARGHESE MATHEW
Date: 2021.06.04
11:30:17 -07'00'