Madhya Pradesh High Court
Harimohan @ Ballu vs State Of M.P. on 18 April, 2022
Author: Gurpal Singh Ahluwalia
1
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 195 of 2011
Harimohan @ Ballu
Vs.
State of M.P.
_______________________________________
Shri Vinay Kumar Counsel for the Appellant
Smt Anjali Gyanani Counsel for the State
Date of Hearing : 07-04-2022
Date of Judgment : 18th-04-2022
Approved for Reporting :
Judgment
18th - April -2022
Per G.S. Ahluwalia J.
1.
This Criminal Appeal under Section 374 of CrPC has been
filed against the Judgment and Sentence dated 14-2-2011 passed by
2nd Additional Sessions Judge, Dabra, Distt. Gwalior in S.T. No.
343/2008, thereby convicting and sentencing the Appellant for the
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
following offences :
Conviction Sentence
Under Section 302 of IPC Life Imprisonment and fine of
Rs. 5000 with default R.I. for 1
year
Under Section 25 of Arms Act R.I. for 3 years and fine of Rs.
500/- with default imprisonment
for 2 months
Under Section 27 of Arms Act R.I. for 3 years and fine of Rs.
500/- with default imprisonment
for 2 months
All sentences to run concurrently.
2. According to prosecution case, Muneesh Rajoria, S.H.O.,
Police Station Dabra, Distt. Gwalior received an information that
firing has taken place in Intakbel. Accordingly, he went to the spot
and found that Pritam Singh Rawat was lying in an injured condition.
He brought him to Dabra Hospital for treatment. After first aid, he
recorded the Dehati Nalishi on the information given by the injured
Pritam Singh Rawat and obtained his thumb impression after reading
out the same to him. Accordingly, F.I.R. was lodged. One base of
fired .12 bore cartridge, blood stained and plain earth were seized. On
20-7-2008, the fired empty cartridge, without base, was seized on
production of the same by Kalyan Singh. The appellant was arrested.
His memorandum was recorded and .12 bore Country made Adhiya
with one live .12 bore cartridge were seized from his possession. Spot
map was prepared. Statements of the witnesses were recorded and
the seized articles were sent for Forensic Examination. Police after
completing investigation, filed charge sheet against the Appellant for
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
offence under Section 307/302 of IPC.
3. The Trial Court by order dated 21-11-2008 framed charges
under Sections 302 of IPC and under Sections 25 and 27 of Arms Act.
4. The Appellant abjured his guilt and pleaded not guilty.
5. The Prosecution examined Rajendra Singh Beriya (P.W.1),
Smt. Ramshree (P.W.2), Nand Kishore (P.W.3), Smt. Vidhya Bai
(P.W.4), Ravindra Singh Rawat (P.W.5), Smt. Ram Bai (P.W.6),
Kalyan Singh (P.W.7), Matadeen Rawat (P.W.8), Nandram (P.W.9),
Ghansu (P.W.10), Hakim Singh (P.W.11), Santosh (P.W.12), Rakesh
Singh Jadon (P.W.13), Pooran Singh (P.W. 14), Vinod Gautam
(P.W.15), Muneesh Rajoria (P.W.16), Dr. S.K. Sharma (P.W.17),
Laxman Singh Kushwah (P.W.18), R.K. Jain (P.W.19), Ramvaran
Sharma (P.W. 20), V.S. Tomar (P.W.21), R.P. Sharma (P.W.22), Ganga
Prasad (P.W. 23), and Rajendra Singh (P.W. 24).
6. The Appellant examined Santosh (D.W.1), and Naresh (D.W.2)
in his defence.
7. By the impugned judgment and sentence, the Trial Court has
convicted and sentenced the Appellant for the above mentioned
offences.
8. Challenging the Judgment and Conviction recorded by the
Trial Court, it is submitted by the Counsel for the Appellant, that all
the material witnesses have turned hostile. The entire case hinges
around the Dehati Nalishi lodged by the deceased himself. The same
is not reliable as Dr. S.K. Sharma (P.W.17) has stated that the patient
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
was not in a position to speak.
9. Per Contra, the Counsel for the State has supported the
findings recorded by the Trial Court.
10. Heard the learned Counsel for the Parties.
11. Before adverting to the facts of the case, this Court would like
to consider as to whether the death of the deceased Pritam Singh was
homicidal in nature or not?
12. Dr. S.K.Sharma (P.W.17) had conducted the MLC of the
injured Pritam Singh Rawat and found following injuries on his
body :
(i) Punctured wound with irregular margin 2x.2 cm in
diameter, edges inverted, no Blackening or tattooing at right
lumbar region on back.
(ii) Rounded punctured wound on right side back 1 ½ x 1
½ cm. Lumbar region below injury no.1 deep like hole
depth not measured. No blackening or tattooing;
(iii) Multiple (Small puncture wounds) 8 in number (.5x.5
cm) in diameter. Surrounding injury no.1 and 2 in 6 x 6
inches area. No blackening or tattooing.
Bleeding present from the wounds. Duration of injuries
within 6 hours.
Corresponding holes and tear present on Baniyan also blood
stained sealed and handed over to police.
General Examination : Conscious but restless, pulse 90/m
Low volume Condition poor after primary treatment, case
referred to JAH, Gwalior for x-ray and treatment.
The MLC is Ex. P. 25.
13. This witness was cross-examined and in cross-examination, he
stated that Blackening and Tattooing is found only when a gun shot is
fire from a range of 3 ft.s or less. He admitted that the patient was
not in a position to speak, therefore, he had not recorded the dying
declaration. Bleeding was going on, when the patient had come.
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
14. The injured was taken to JAH, Gwalior and at 11:20 P.M., he
was medically examined and it was opined that he has been brought
dead. Accordingly, on 20-7-2008, post-mortem of deceased Pritam
Singh Rawat was conducted and Dr. V.S. Tomar (P.W.21) found
following injuries on his body :
(i) Wound of entrance is present over the right side of
back of abdomen situated 10 cm above the right buttock,
measurement 2 x cm x abdominal cavity deep on probably
by rubber tube.
(ii) Wound of entrance present over the 2.5 cm above and
1.5 cm medial to the injury no.1 measurement 1.5 cm x 1
cm x abdominal cavity deep
(iii) Five wound of entry 0.3 cm in diameter rounded
shaped margin lacerated edges inverted present as shown in
diagram and multiple pin head size abrasions present
around these wound in 21 x 18 cm area vertically.
(iv) Multiple abrasions about 4 in number.
On dissection one pellet is recovered from spinal cord at 3 rd
Lumbar vertebra, one is recovered from main loop of small
intestine and eight pellets recovered from posterior
abdominal cavity from small intestine walls.
Blood clot present in abdominal cavity.
All these injuries are ante-mortem in nature and caused by
any fire arm. Injury to abdominal cavity and hemorrhage is
fatal to life in ordinary course of nature.
The Cause of death was cardio respiratory failure due to
injuries to abdomen and hemorrhage.
The Post-mortem report is Ex. P.29.
15. This witness was cross-examined, and in cross-examination, he
stated that there was no blackening or tattooing. The injured can die
within 30 minutes of sustaining gun shot injury. He must have been
in speaking condition for near about 10-15 minutes after sustaining
gun shot injury. The gun shot must have been fired from a range of
more than 4 ft.s.
16. Thus, it is clear that the death of the deceased Pritam Singh
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
Rawat was homicidal in nature.
17. Now the next question for consideration is that whether the
Appellant is the Author of offence or not?
18. Rajendra Singh Beria (P.W.1), Smt. Ramshree (P.W.2), Nand
Kishore (P.W.3), Smt. Vidhya Bai (P.W.4), Ravindra Singh Rawat
(P.W.5), Smt. Ram Bai (P.W.6), Kalyan Singh (P.W.7), Matadeen
Rawat (P.W.8), Nandram (P.W.9), Ghansu (P.W.10), Hakim Singh
(P.W.11), Santosh (P.W.12), have turned hostile and did not support
the prosecution case.
19. Rakesh Singh Jadon (P.W.13) had registered the FIR, Ex. P. 20
on the basis of Dehati Nalishi. On 22-7-2008, merg intimation was
brought by Constable Hariram from Police Station Kampoo and
accordingly, he had recorded merg no. 80/08, Ex. P.21. On 22-7-
2008, Constable Hariram had brought sealed Viscera, one Packet, one
sealed packet containing pellets recovered from the dead body of the
deceased, seal specimen, one salt solution, which were seized vide
seizure memo Ex. P.22.
20. Puran Singh (P.W. 14), has stated that one fired .12 bore
cartridge was produced by Kalyan Singh which was seized vide
seizure memo Ex. P. 6. One .12 bore Country made Adhiya was
seized by the S.H.O., Muneesh Rajoria on production of the same by
the Appellant Harimohan vide seizure memo Ex. P.18.
21. Vinod Gautam (P.w. 15) is a Police Constable. He had gone to
the spot along with S.H.O., Muneesh Rajoria where Pritam Singh was
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
lying in an injured condition. Pritam Singh had lodged Dehati
Nalishi and accordingly, he was sent to Police Station Dabra along
with Dehati Nalishi. He handed over Dehati Nalishi, Ex. P.23 to H.C.
Rakesh Jadon who registered F.I.R., Ex. P.20. In cross-examination,
he denied that when he reached on the spot, the injured Pritam Singh
Rawat was already dead.
22. Muneesh Rajoria (P.W.16) is the Investigating Officer. This
witness received an information that firing has taken place in
Intakbel. Accordingly, he went to the spot and found that Pritam
Singh Rawat was lying in an injured condition. He brought him to
Dabra Hospital for treatment. After first aid, he recorded the Dehati
Nalishi, Ex. P. 23 on the information given by the injured Pritam
Singh Rawat and obtained his thumb impression after reading out the
same to him. Accordingly, F.I.R. was lodged. One base of fired .12
bore cartridge, blood stained and plain earth were seized vide seizure
memo Ex. P.5. On 20-7-2008, the fired empty cartridge without base
was seized on production of the same by Kalyan Singh vide seizure
memo Ex. P. 6. The appellant was arrested vide arrest memo Ex.
P.17. His memorandum was recorded and .12 bore Country made
Adhiya with one live .12 bore cartridge were seized from his
possession vide seizure memo Ex. P.18. The spot map was prepared
on the information of Nandkishore, Ex. P.4. Statements of the
witnesses were recorded and the seized articles were sent for Forensic
Examination. The information of firing was recorded in
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
Rojnamchasanha no. 1331 and they left for spot which is mentioned
in Rojnamchasanha No. 1332, Ex P.24. This witness was cross-
examined.
23. In cross-examination, he stated that an information was given
by Counselor Rajendra Bairiya on telephone. He had talked to
Rajendra Bairiya. He had not recorded any FIR on the basis of
information given by Rajendra Bairiya. The injured and his family
members were there on the spot. Rajendra Bairiya was also on the
spot. He had talked to the injured and his family members while they
were on their way to Hospital. He had taken the injured on police
jeep. Injured was referred by Doctor within 15-20 minutes. He did
not go to Gwalior, whereas Constable Shatrughan was sent. He
received an information of death of Pritam on 20-7-2008. He had
seen injuries on the back of injured. Dehati Nalishi, Ex. P.23 is in his
handwriting. He had not requested the Doctor to record the dying
declaration. Since, he had already recorded the Dehati Nalishi,
therefore, he had not requested the Doctor to record his dying
declaration. The omissions and contradictions in the statements of
the witnesses were also got proved from this witness. He denied that
when he reached on the spot, the injured Pritam was already dead.
24. Thus, it is clear from the evidence of this witness that when the
injured Pritam was brought to the Hospital, he was talking. No
question was put to this witness with regard to the mental condition
of the injured.
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
25. Laxman Singh Kushwaha (P.W. 18) has stated that he had
seized one sealed packet containing cloths, specimen seal, on the
production of the same by Constable Chhabiram vide seizure memo
Ex. P.25.
26. R.K. Jain (P.W.19) was working as ADM, Gwalior. Seized
Arm and Cartridge along with police case diary were produced by
S.S. Khan, S.I., and he had granted sanction for prosecution.
27. Rambaran Sharma (P.W.20) is an armorer who had examined
the sealed Adhiya and cartridge and found that Adhiya was in working
condition. His report is Ex. P. 28.
28. R.P. Sharma (P.W. 22) had received the merg intimation from
Dr A.K. Bohare, C.M.O., Casualty Ward, Gwalior regarding death of
Pritam. He issued the Safina form, Ex. P.12 and prepared the Lash
Panchnama, Ex. P. 13. He also gave requisition for post-mortem, and
the post-mortem report is Ex. P.29.
29. Ganga Prasad (P.W. 23) has stated that on 20-7-2008, a
telephonic information was given by Dr. A.K. Bohare at 12:45 in the
night about the death of Pritam and accordingly, merg intimation, Ex.
P.30 was written by him.
30. Rajendra Singh (P.W. 24) is a witness of Safina Form, Ex. P. 12
and Lash Panchnama Ex. P.13.
31. Santosh (D.W.1) has stated that he knows Pritam Singh who is
father-in-law of Harimohan. On 19-7-2008 he came to know that
some unknown person has killed Pritam Singh. In cross-examination,
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
he has stated that he is the neighbour of Harimohan and he had seen
him in his house till 10-11 in the night. He denied that the appellant
was not in his house.
32. Naresh (D.W.2) has stated that the incident is of 19-7-2008. He
was along with the deceased Pritam. Pritam went to close the door,
from where he heard the noise of firing. Thereafter, he also went to
the spot. He saw that Pritam was lying dead and some unknown
person had left the place after killing him. This witness was cross-
examined.
33. In cross-examination, he stated that he is an employee of
Municipal Council and got appointment on compassionate ground.
His place of duty was about 500 ft. away from the spot. He further
stated that he could not see that who had shot the deceased.
34. Thus, this witness is not an eye-witness.
35. It is submitted by the Counsel for the Appellant that since, Dr.
S.K. Sharma (P.W.17) has stated in his cross-examination that the
deceased was not in a position to speak therefore, it is clear that the
Dehati Nalishi, Ex. P.23 cannot be relied upon.
36. Considered the submissions made by the Counsel for the
Appellant.
37. Dr. S.K. Sharma (P.W. 17) in the MLC, Ex. P. 25 has mentioned
that the patient is conscious but restless. Now the question for
consideration is that what is the meaning of word "Conscious"? The
Dictionary meaning of word "Conscious" is "Aware of and
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
responding to one's surroundings", or "having knowledge of
something". Conscious is also known as "mental faculties not dulled
by sleep or faintness". Thus consciousness identifies a state in which
a patient is awake, aware, alert, and responsive to stimuli.
38. It is submitted by the Counsel for the Appellant, that since, Dr.
S.K. Sharma (P.W.17) was not declared hostile on the question as to
whether the injured was in a speaking condition or not, therefore, his
evidence is binding on the prosecution.
39. The Supreme Court in the case of Dayal Singh Vs. State of
Uttaranchal reported in (2012) 8 SCC 263 has held as under :
30. With the passage of time, the law also developed and
the dictum of the Court emphasised that in a criminal case,
the fate of proceedings cannot always be left entirely in the
hands of the parties. Crime is a public wrong, in breach and
violation of public rights and duties, which affects the
community as a whole and is harmful to the society in
general.
31. Reiterating the above principle, this Court in NHRC v.
State of Gujarat held as under: (SCC pp. 777-78, para 6)
"6. ... '35. ... The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and
the society and it is the community that acts through
the State and prosecuting agencies. Interest of society
is not to be treated completely with disdain and as
persona non grata. The courts have always been
considered to have an overriding duty to maintain
public confidence in the administration of justice--
often referred to as the duty to vindicate and uphold
the 'majesty of the law'. Due administration of justice
has always been viewed as a continuous process, not
confined to determination of the particular case,
protecting its ability to function as a court of law in the
future as in the case before it. If a criminal court is to
be an effective instrument in dispensing justice, the
Presiding Judge must cease to be a spectator and a
mere recording machine by becoming a participant in
the trial evincing intelligence, active interest and elicit
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
all relevant materials necessary for reaching the correct
conclusion, to find out the truth, and administer justice
with fairness and impartiality both to the parties and to
the community it serves. The courts administering
criminal justice cannot turn a blind eye to vexatious or
oppressive conduct that has occurred in relation to
proceedings, even if a fair trial is still possible, except
at the risk of undermining the fair name and standing
of the Judges as impartial and independent
adjudicators.' (Zahira Habibullah case, SCC p. 395,
para 35)"
32. In State of Karnataka v. K. Yarappa Reddy this Court
occasioned to consider the similar question of defective
investigation as to whether any manipulation in the station
house diary by the investigating officer could be put
against the prosecution case. This Court, in para 19, held as
follows: (SCC p. 720)
"19. But can the above finding (that the station house
diary is not genuine) have any inevitable bearing on
the other evidence in this case? If the other evidence,
on scrutiny, is found credible and acceptable, should
the court be influenced by the machinations
demonstrated by the investigating officer in
conducting investigation or in preparing the records so
unscrupulously? It can be a guiding principle that as
investigation is not the solitary area for judicial
scrutiny in a criminal trial, the conclusion of the court
in the case cannot be allowed to depend solely on the
probity of investigation. It is well-nigh settled that
even if the investigation is illegal or even suspicious
the rest of the evidence must be scrutinised
independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the
investigating officers ruling the roost. The court must
have predominance and pre-eminence in criminal trials
over the action taken by the investigating officers.
Criminal justice should not be made a casualty for the
wrongs committed by the investigating officers in the
case. In other words, if the court is convinced that the
testimony of a witness to the occurrence is true the
court is free to act on it albeit the investigating
officer's suspicious role in the case."
33. In Ram Bali v. State of U.P. the judgment in Karnel
Singh v. State of M.P. was reiterated and this Court had
observed that: (Ram Bali case, SCC p. 604, para 12)
"12. ... In case of defective investigation the court has
to be circumspect [while] evaluating the evidence. But
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
it would not be right in acquitting an accused person
solely on account of the defect; to do so would
tantamount to playing into the hands of the
investigation officer if the investigation is designedly
defective."
34. Where our criminal justice system provides safeguards
of fair trial and innocent till proven guilty to an accused,
there it also contemplates that a criminal trial is meant for
doing justice to all, the accused, the society and a fair
chance to prove to the prosecution. Then alone can law and
order be maintained. The courts do not merely discharge the
function to ensure that no innocent man is punished, but
also that a guilty man does not escape. Both are public
duties of the Judge. During the course of the trial, the
learned Presiding Judge is expected to work objectively and
in a correct perspective. Where the prosecution attempts to
misdirect the trial on the basis of a perfunctory or
designedly defective investigation, there the Court is to be
deeply cautious and ensure that despite such an attempt, the
determinative process is not subverted. For truly attaining
this object of a "fair trial", the Court should leave no stone
unturned to do justice and protect the interest of the society
as well.
40. Thus, it is clear that the Court can make overall assessment to
reach to a conclusion and is not bound by the evidence by
prosecution.
41. If the evidence of Muneesh Rajoria (P.W. 16), Dr. S.K. Sharma
(P.W.17) and MLC, Ex. P.25 are read conjointly, then it is clear that
no question was put to Muneesh Rajoria (P.W.16) with regard to the
fact that whether the injured was speaking or not or whether he was in
fit state of mind or not? On the contrary, Muneesh Rajoria (P.W.16)
in his cross-examination, has specifically stated that while he was
bringing the injured Pritam to Hospital, he had talked to him. It is
submitted by the Counsel for the Appellant, that since, Muneesh
Rajoria (P.W.16) did not record the Dehati Nalishi in the vehicle
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
itself, therefore, the stand of Muneesh Rajoria (P.W. 16) that he had
talked to the injured on his way to Hospital appears to be false.
Considered the submissions made by the Counsel for the Appellant.
42. Muneesh Rajoria (P.W.16) has specifically stated that his first
attempt was to bring the injured to Hospital as early as possible, so
that treatment may start. This reply cannot be said to be unnatural. If
a person has sustained gun shot injury and is bleeding, then the first
attempt of the police officer is to make every possible attempt to save
the life of an injured.
43. Thus, it is clear that the injured Pritam was talking and was
conscious at the time of recording of Dehati Nalishi, Ex. P.23.
44. The Supreme Court in the case of Laxman Vs. State of
Maharashtra reported in (2002) 6 SCC 710 has held as under :
5. The Court also in the aforesaid case relied upon the
decision of this Court in Harjit Kaur v. State of Punjab4
wherein the Magistrate in his evidence had stated that he
had ascertained from the doctor whether she was in a fit
condition to make a statement and obtained an endorsement
to that effect and merely because an endorsement was made
not on the declaration but on the application would not
render the dying declaration suspicious in any manner. For
the reasons already indicated earlier, we have no hesitation
in coming to the conclusion that the observations of this
Court in Paparambaka Rosamma v. State of A.P. (at SCC p.
701, para 8) to the effect that
"in the absence of a medical certification that the
injured was in a fit state of mind at the time of making
the declaration, it would be very much risky to accept
the subjective satisfaction of a Magistrate who opined
that the injured was in a fit state of mind at the time of
making a declaration"
has been too broadly stated and is not the correct
enunciation of law. It is indeed a hypertechnical view that
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
the certification of the doctor was to the effect that the
patient is conscious and there was no certification that the
patient was in a fit state of mind especially when the
Magistrate categorically stated in his evidence indicating
the questions he had put to the patient and from the answers
elicited was satisfied that the patient was in a fit state of
mind whereafter he recorded the dying declaration.
Therefore, the judgment of this Court in Paparambaka
Rosamma v. State of A.P. must be held to be not correctly
decided and we affirm the law laid down by this Court in
Koli Chunilal Savji v. State of Gujarat.
(Underline supplied)
45. It is submitted by the Counsel for the Appellant that the Dehati
Nalishi, Ex. P.23 lodged by the deceased himself, cannot be treated as
Dying Declaration and hence, it is not admissible.
46. The submission made by the Counsel for the Appellant is
misconceived.
47. The Supreme Court in the case of Dharam Pal Vs. State of
U.P. reported in (2008) 17 SCC 337 has held as under :
16. The learned counsel for the appellants further argued
before us that the alleged dying declaration which was
given the shape of an FIR could not be made the basis of
conviction when the original document signed by the
deceased was not brought on record. The learned counsel
for the appellants tried to prove before us that the deceased
was not in a position to speak and which becomes apparent
from the testimony of his father. However, it would not be
correct to say so. The evidence of PW 7, Dr. R.P. Goel
shows that the condition of the deceased was good and that
he was in a position to speak. It would not be appropriate
for us to read between the lines by giving unnecessary
meanings to the testimony of Raghu. It cannot be left out of
sight that Raghu also said that the deceased dictated the FIR
to the police. In any view of the matter, the report of
occurrence was dictated by the deceased himself and the
same was read over to him after which he had put his thumb
impression on the same. This report is admissible under
Section 32 of the Evidence Act as a dying declaration. It is
true that the original document signed by the deceased was
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
not brought on record, but in our view, the FIR has rightly
been admitted as a dying declaration. There appears no
reason for the police to falsely implicate any one of the
accused inasmuch as, initially, the report dictated by the
deceased was taken down as a non-cognizable report under
Section 323 IPC. If the police were to implicate the
accused, they would not have taken down the report as a
non-cognizable report in the very first place itself.
17. That apart, the report dictated by the deceased fully
satisfied all the ingredients for being made admissible as a
dying declaration. To ascertain this aspect, we may refer to
some of the general propositions relating to a dying
declaration. Section 32(1) of the Evidence Act deals with
dying declaration and lays down that when a statement is
made by a person as to the cause of his death, or as to any
of the circumstances of the transaction which resulted in his
death, such a statement is relevant in every case or
proceeding in which the cause of the person's death comes
into question. Further, such statements are relevant whether
the person who made them was or was not at the time when
they were made under expectation of death and whatever
may be the nature of the proceedings in which the cause of
his death comes into question.
18. The principle on which a dying declaration is
admissible in evidence is indicated in the maxim "nemo
moriturus praesumitur mentire", which means that a man
will not meet his maker with a lie in his mouth. Thus, it is
clear that a dying declaration may be relating to:
(a) as to the cause of death of the deceased;
(b) as to "any of the circumstances of the transaction" which
resulted in the death of the deceased.
19. It is also clear that it is not necessary that the declarant
should be under expectation of death at the time of making
the statement.
20. If we look at the report dictated by the deceased in the
light of the aforesaid propositions, it emerges that the
names of the accused and the important features of the case
have been clearly mentioned in the report. It contains a
narrative by the deceased as to the cause of his death, which
finds complete corroboration from the testimony of
eyewitnesses and the medical evidence on record. There is
nothing on record to show that the deceased was not in
a position to speak at the time when he dictated the report
of occurrence. On the other hand, the materials and the
other evidence on record would conclusively show, as
rightly held by the High Court, that the deceased was in a
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
position to speak when he dictated the report of occurrence.
Therefore, in our view, the High Court was fully justified in
holding that the deceased was in a fit state of mind at the
time of making the statement.
48. No other argument is advanced by the Counsel for the
Appellant.
49. After appreciating the evidence available on record, this Court
is of the considered opinion, that the prosecution has succeeded in
establishing the guilt of the Appellant beyond reasonable doubt.
Accordingly, his conviction under Section 302 of IPC and under
Sections 25 and 27 of Arms Act is Upheld.
50. So far as the question of sentence is concerned, the minimum
sentence for offence under Section 302 of IPC is Life Imprisonment.
Accordingly, the sentence awarded by the Trial Court doesnot call for
any interference.
51. Ex-consequenti, the Judgment and Sentence dated 14-2-2011
passed by 2nd Additional Sessions Judge, Dabra, Distt. Gwalior in
S.T. No. 343/2008 is hereby Affirmed.
52. The Appellant is in jail. He shall undergo the remaining jail
sentence.
53. A copy of this judgment be immediately provided to the
Appellant, free of cost.
54. The record of the Trial Court be send back immediately along
with copy of this judgment for necessary information and
compliance.
Harimohan @ Ballu Vs. State of M.P. (Cr.A. No. 195/2011)
55. The Appeal filed by the Appellant against his conviction fails
and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2022.04.19 10:57:44 +05'30'
