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CASE NO.: Appeal (crl.)  693 of 2003

PETITIONER: KHALIL  KHAN                                             

RESPONDENT: STATE  OF  MADHYA PRADESH                    

DATE OF JUDGMENT: 08/10/2003

BENCH: N.SANTOSH HEGDE & B.P. SINGH.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE,J.

The appellant in this Appeal was convicted by the learned  Sessions Judge, Shiv Puri in Sessions Case No. 65 of 1986 for an  offence punishable under Section 302 IPC and was sentenced to  undergo  imprisonment  for life and was further imposed a fine of  Rs. 1,000/- in default to undergo further rigorous  imprisonment  for a period of six months.  His appeal to the High Court of  Judicature of Madhya Pradesh, Gwalior Bench, having failed , he  is before us in this appeal.         Brief facts necessary for the disposal of this case are that on  6th April, 1986 at about 11 P.M., in view of certain prior enmity,  the appellant stabbed and killed one Wahid  Khan, son of Bashir Khan. According to the prosecution there were no eye witnesses  as such witnessing the incident but Rashid  Khan (PW-3),  Munshi Sani Mohammad  (PW-4) and Nasir Khan (PW-6) and  Imami (PW-9) had seen the appellant running away with the  knife in his hand.  It is the further case of the prosecution.  PWs.  2, 3, 5, 6 & 8 heard the deceased say that it was appellant who  stabbed  him.  The prosecution further states that when the  deceased was taken to police station- Shiv Puri by PWs. 1,2,5  and 6 he again told the head constable Ram Singh (PW8) that  the  appellant had stabbed him.  Hence a FIR (Exhibit P-6) was  lodged at about 11.40 P.M. in the same night.  That FIR  does  mention the fact that the deceased had made a dying declaration  naming the appellant as the accused.  Originally the FIR  registered was for an offence under Section 307 IPC.   Subsequently on 7th April, 1986, the deceased  having died, the   FIR was altered to include an offence punishable under Section  302 IPC. The prosecution relied on the said dying declaration as well  as the evidence of  PWs.  2, 5 and 8 as also on the recovery of a  blood stained knife and blood stained personal clothes of the  appellant.  The trial court as well as the High Court have accepted  this evidence to base a conviction as against the appellant. Shri Rishi Malhotra, learned counsel for the appellant  contended that the prosecution has failed to establish that the  deceased could have been in a fit condition to make a dying  declaration or for that matter he did make a dying declaration.   He also contended that the evidence of  PWs. 2, 5 & 8 who stated  before the Court that they had heard the deceased, naming the  appellant, cannot be believed because these witnesses have made   improvements in their evidence as to the dying declaration  because in their first statement recorded by the investigating  officer under Section 161 of the Crl. P.C. they did not make any  such statement regarding they having heard the dying  declaration made by the deceased.  He also contended that the so

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called recovery of the knife as also the clothes which were found  to be stained with human blood cannot be relied upon because  one of the prosecution witnesses who had witnessed the said  recovery had specifically stated that these articles  were  found in  the police station and the same was recovered from there and not  at the instance of the appellant. Ms. Vibha Dutta Makhija, learned counsel appearing for  the State however, contended that the fact, that PWs. 2,5 & 8 were  present when the deceased made the dying declaration, is  corroborated by the contents of the FIR.  Therefore assuming that  this fact was not mentioned in the previous statement, it would not  make any difference to the prosecution case.  She also contended  while one of the witnesses of recovery has turned hostile, the other  witness having supported the prosecution, his evidence is  sufficient proof of the recoveries made by the investigating  agencies. We have heard the learned counsel for the parties and  perused the records as noted above.  The prosecution case rests  mainly on the fact that the deceased had make a dying   declaration.  This fact assumes all importance because there was  no eye witness to the incident.  Apart from all other discrepancies      in the evidence of  PWs. 1,2,5 & 8 , we notice that  this important  fact, namely,  that the deceased did make a statement implicating  the appellant as the assailant, was not made to the investigating  officer when their statements were  first recorded and their saying  for the first time before the court this fact raises some doubts as to  the veracity  of said fact.  Taking into consideration the nature of  injuries suffered and the prosecution evidence itself  that the  deceased while being taking to the hospital had become  unconscious, we think it is  not safe to rely upon the evidence of  these witnesses who have made this important statement as to the  dying declaration for the first time before the Court.  While  holding so,  we have borne in mind the fact that all these witnesses  are very closely related to the deceased.   If this part of the evidence of the prosecution is to be  excluded then, in our opinion, there is no sufficient material to  hold the appellant guilty.  Be that as it may, we may refer to the  recovery part relied upon by the courts below.  We notice that one  of the witnesses to the recovery has not supported the prosecution  case.  That apart the incident in question had taken place on  6th  April, 1986 and the accused was arrested only on 11th April, 1986,  nearly four days thereafter.  We find it extremely difficult to  believe that a person who is involved in such a serious crime like  murder would still be wearing clothes which are blood stained  even four days after the murder which fact we find is opposed to  normal human conduct. In this background, the evidence of the  hostile witness that the recoveries were made at the police station  assumes importance. We think it is not safe to place reliance on  this part of the prosecution case also. Since, in our opinion, the prosecution case in regard to the  dying declaration and also the recovery is not beyond reasonable  doubt, hence, the benefit of the same must go to the appellant.   For the reasons stated above this appeal succeeds.  The  judgment and conviction made by the courts below are set aside.  The appellant shall be released forthwith (if in custody), if not  wanted in any other case. Appeal allowed.