We have heard the learned counsel for
the parties. The prosecution is based upon the dying declaration of
the deceased. The said dying declaration is in oral form. It was made by
the deceased to his brother Rajkumar and mother Usha Rani who had reached the
place of occurrence on being informed that the deceased was being beaten
and assaulted by the accused persons near Raja Hotel.
The dying
declaration as revealed by Rajkumar was made by the deceased on the asking of
the mother as to what had happened. It is in response to the above query
that the100 deceased stated that Banti, Manto, and Ajay have assaulted him
with knife, dagger and iron rod respectively whereas Jitu caught120 both his hands. The above dying
declaration is in the shape of an answer to the question asked by the mother of
the deceased as to what had happened to him when she saw him lying on the road
in a pool of blood. The statement of the mother of the deceased
also contains a similar dying declaration of the deceased.
In addition to the above dying
declaration, reliance has been placed upon the testimony of one of the eyewitnesses,200 Rahul. The said witness stated that the incident in which the
deceased Guddu was killed had taken place between 08.30 pm to 09.00 pm on
08.06.2007 near Raja Hotel. He was returning from240 his friend's house and when he reached
near Shukla Hotel, he saw the accused persons namely Banti, Manto, Jitu
and Ajay beating Guddu. He tried to rescue Guddu but the accused persons drove
him out. He then rushed to the House of Guddu to inform about the incident to
his family members, but he found no one at the house300 and therefore left for his home. It has come in evidence that Rahul is a relative of the deceased Guddu
and as such he is not a free and independent witness. He is
likely to be an interested witness. The evidence reveals that he is
a person with criminal background. He is involved in one of the cases
registered under360 Section 324 and 326 of IPC. He has been chargesheeted
under Section 3 of the Explosive Substance Act. He has avoided the
process of the Court and had been absconding for almost 7 months.
In view400 of his above background, his
testimony has to be considered with great circumspection and
cannot be relied upon blindly without taking into account available
corroborative evidence on record, if any. The evidence on record casts a
serious doubt as to whether the place of occurrence or the Raja Hotel was
visible from the Shukla Hotel where the above witness was standing and from
where he is said to have seen the occurrence of the incident. The above witness was not480 found at the place of occurrence by the brother and mother of the
deceased when they reached the place of500 occurrence immediately after the alleged incident had
taken place or at the time when the deceased was lying on the road. They
have not mentioned about his presence though he ought to have been there as
he had tried to save the deceased.
Even the deceased
has not mentioned in his alleged dying declaration or the statement given to
his brother and mother that someone tried to save him or that the above witness
Rahul had come to his rescue but was made to run away. Additionally, even the FIR
does not mention the presence of Rahul. All these factors600 cast a serious doubt as to
presence of Rahul and the conviction cannot be based on his testimony alone.
The FIR specifically
mentioned that the incident was witnessed by Naveen and Amit, the friends of
the deceased who were with him at the time of incident. Both these
persons have not supported the prosecution case. These two
eye-witnesses to the incident were declared hostile and as such their depositions
are of no use now. Now coming to the dying declaration made by the deceased to
his brother and mother, we find that the injuries sustained by the deceased
were very700 grave. Dr. Abhishek Singh, who performed the postmortem at
Medical College, Jabalpur opined that the left lung of the deceased720 was punctured causing respiratory
failure and the left lung was pale. The heart injury sustained by him could
have caused excessive bleeding and in that situation the person would
have died between 5 to 10 minutes of receiving such injuries or within a maximum
of 15 minutes. The postmortem report on record which was duly proved reveals
that the deceased had died due to haemorrhage shock and cardio-respiratory
failure. Apart from the injuries referred above, the deceased had
suffered other800 serious injuries, not only on neck, chest and abdomen but also on
the lower limbs from where bleeding had taken place. There was also an
injury on the skull. Rajkumar, the brother of the deceased, is a
lawyer by profession.840 The brother and the mother of the deceased had rushed to the spot
only after receiving information of the incident from PW-1 who after
seeing the accused persons assaulting the deceased had gone to their house to
inform of the incident. All this, obviously, could have consumed 15 to 25
minutes which means that by the time they900 reached the place of occurrence,
the deceased could not have survived so as to make any declaration.
There is no
specific material piece of evidence to establish that
the deceased was alive or in a position to speak when his brother and mother
reached the spot. In these circumstances, the dying declaration cannot
be ex facie accepted to be correct960 unless it stands corroborated by any other cogent
evidence. There is no material to corroborate the said dying
declaration.
We are conscious
of the fact that the appellate court should be slow in interfering with the
conviction recorded by the1000 courts below but where the evidence on record indicates the
prosecution has failed to prove the guilt of the accused beyond
reasonable doubt and that a plausible view, different from the one
expressed by the courts below can be taken, the appellate court should not shy
away in giving the benefit of doubt to the accused persons.
In the overall facts
and circumstances of the case, we are of the opinion that the courts below
ought to have extended the1080 benefit of doubt to the appellants. Accordingly, we are of the
opinion that the conviction and sentence of the appellants1100 are liable to be set aside
and are hereby set aside by granting the benefit of doubt. They stand acquitted and are set free.1124
