Ramji vs The State Of Madhya Pradesh
2022 Latest Caselaw 894 MP

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        The High Court Of Madhya Pradesh
                 CRA No. 6672 of 2021
                      (RAMJI Vs THE STATE OF MADHYA PRADESH)

Jabalpur, Dated : 19-01-2022
      Heard through Video Conferencing.

      Ms. Namrata Agrawal, Advocate for the appellant.
      Shri Dilip Parihar, Panel Lawyer for the respondent/State.

Record of the Court below has been received.

Heard on admission.

Appeal is arguable, therefore, admitted for hearing.

Written objection has been filed by the State.

Also heard o n I.A. No.19850/2021 for suspension of sentence and grant of bail filed on behalf of the appellant Ramji.

T h e appellant has been convicted vide judgment dated 12.10.2021 passed by the Second Additional Sessions Judge Khurai, District Sagar (M.P.) in S.T. No.3900403/2016 for commission of offence punishable under Sections 302, 449 of the Indian Penal Code and sentenced to undergo Life Imprisonment with fine of Rs.5000/- and ten years RI with fine of Rs.3,000/- with default stipulation.

Learned counsel for the appellant submits that no family members, seizure witnesses or independent witnesses supported the prosecution story. The conviction of appellant is solely based on the dying declarations vide Exs.P/16 & P/19. By taking this Court to both the dying declarations, Ms. Agrawal has taken pains to content that there is glaring contradictions and variance in the version of the deceased. Since the deceased could not have been put to cross-examination, in cases of multiple dying declarations, dying declarations must be examined with great circumspection. By placing reliance o n (2005) 9 SCC 769 (State of Punjab Vs. Parveen Kumar), (2008) 5 SCC 468 (Amol Singh Vs. State of Madhya Pradesh) and 2021 SCC Online SC 260 (Naresh Kumar Vs. Kalawati & Others), it is submitted that in cases of inconsistent dying declarations, the credibility of dying

declarations are in doubt and in such cases even if the appellant's name and role is mentioned in both the dying declarations, in view of the judgment of Parveen Kumar (supra), the appellant could not have been convicted. In addition by placing reliance on an affidavit dated 16.03.2016 (Annexure-D/1), it is submitted that the deceased exonerated the present appellant and in view of this document also, the conviction of appellant deserves interference. The

final hearing of this appeal in near future is not possible. The appellant remained in custody from the date of judgment and prior to it, during the trial, he was in custody from 04.04.2016 to 16.02.2017. Thus, the remaining jail sentence of appellant may be suspended and he may be granted bail.

The prayer is opposed by Shri Dilip Parihar, learned Panel Lawyer by contending that the dying declarations were duly proved by the Authorities including the Executive Magistrate. He placed reliance on the paragraphs 35, 37 and 44 of the judgment, it is submitted that name of present appellant is there in both the dying declarations and, therefore, there is no inconsistency.

We have heard the parties on this aspect.

In Parveen Kumar (supra), the Apex Court has opined as under:-

8. "It will thus, appear that so far the first dying declaration is concerned, there is no allegation against either the mother-in-law, the father-in-law or the sister-in-law and the allegation is solely against the respondent, who is said to have sprinkled kerosene oil on her and set her on f ir e . In the second dying declaration, the allegation is that the mother-in-law sprinkled the kerosene oil and the husband set her on fire with a match stick. While they were doing so, her father-in-law and sister-in-law were exhorting them to do away with her by setting her on fire. These two versions are quite different and not consistent with each other, except that so far as the respondent is concerned, the act of lighting the fire is ascribed to him in both the dying declarations.

9. Counsel for the State submitted that since the respondent has been named in both the dying declarations, his conviction could be sustained. We are afraid we cannot accede to his request. In the

first place, in appeal against acquittal, this Court will not set aside the findings of fact and the order of acquittal recorded by the High Court unless it is satisfied that the findings recorded are wholly unreasonable, perverse, not based on evidence on record, or suffer from serious legal infirmity. The mere fact that on the basis of the same evidence another view is possible, is not a ground for setting aside an order of acquittal. We find that the view taken by the High Court is a possible reasonable view on the evidence on record and, therefore, we will not be justified in setting aside the order of acquittal.

10. While appreciating the credibility of the evidence produced before the Court, the Court must view evidence as a whole and come to a conclusion as to its genuineness and truthfulness. The mere fact that two different versions are given but one name is common in both of them cannot be a ground for convicting the named person. The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this Court could have considered such corroborative evidence to test the truthfulness of the dying declarations . The two dying declarations, however, in the instant case stand by themselves and there is no other reliable evidence on record by reference to which their truthfulness can be tes ted . It is well settled that one piece of unreliable evidence cannot be used to corroborate another piece of unreliable evidence. The High Court while considering the evidence on record has rightly applied the principles laid down by this Court in Thurukanni Pompiah and another Vs. State of Mysore, AIR 1965 SC 939, and Khusal Rao Vs. State of Bombay, 1958 SCR 552"

In view whereof, without expressing any conclusive opinion on the merits of the case, we deem it proper to suspend the remaining jail sentence of the appellant and grant of bail.

Accordingly, I.A. No. 19850/2021 i s allowed. Execution of jail sentence of appellant Ramji is hereby suspended and it is ordered that he be

released on bail on his furnishing a personal bond for the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the trial Court, with a further direction to appear before the trial Court, Sagar on 22.06.2022 and such further dates as may be fixed in this regard.

List this case for final hearing in due course.

Certified copy/e-copy as per rules/directions.

          (SUJOY PAUL)                                          (ARUN KUMAR SHARMA)
             JUDGE                                                      JUDGE

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PANKAJ NAGLE
2022.01.20
10:39:24 +05'30'