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PETITIONER: MEHARBAN AND OTHERS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       27/09/1996

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAY, G.N. (J)

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E T      HANSARIA, J.      Four accused-Meharban,  Rugga  Singh,  Baje  Singh  and Jagannath - faced trial on the principal charge of murder of one  Ranjit  Singh  on  the  night  between  22nd  and  23rd February, 1981.  The charge  against the first three accused was under  section  302/34  and  against  the  fourth  under section 302/109  IPC. Meharban  had faced  trial also  under section 379  IPC for  the alleged  offence  of  theft  of  a bicycle belonging  to PW-3  Bhan Singh. The learned Sessions Judge acquitted  all the  accused under all the charges. The State preferred  appeal against  the first three accused and the High  Court has  come  to  convict  them  under  section 302/34. The acquittal of Meharban under section 379 has been maintained. Hence  this appeal  under section  2(a)  of  the Supreme Court  (Enlargement of Criminal Appeal Jurisdiction) Act, 1970. 2.   There is  no dispute  at the bar that the conviction is based primarily  on the  dying declaration  of Ranjit  Singh which has  been deposed  to by  his sons PW.1 Meharban, PW.8 Sujan Singh;  his  widow  PW.2  Reshamabai:  and  PW.3  Bhan Singh,(would  be)   close   relation.   According   to   the prosecution,   the    dying   declaration    has    received corroboration  from  finding  of  some  materials  from  the possession or  at the  instance of  the appellants which had contained human  blood.  The  trial  court  disbelieved  the testimony of  these witnesses  relating to dying declaration on ten grounds noted in para 3 of the impugned judgment. The High Court  has gone  into each of the grounds and has taken the view that the trial court was not right in rejecting the dying declaration  for the  reasons  ascribed  by  it.  Shri Bachawat,  learned   senior  counsel   appearing   for   the appellants, has  contended that  the view of the trial court being also  reasonable did  not merit reversal. Shri Shukla, learned  senior  Advocate  appearing  for  the  State,  has, however, urged  that the appreciation of the evidence by the High Court should receive our concurrence.

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3.   The  basic   reason  which   led  the  trial  court  to disbelieve the  evidence of  the PWs is the improbability of recognizing the  assailants as  the occurrence was on a dark night and inside a hut where the deceased was sleeping. Now, if the  occurrence had  really taken place inside the hut we would agree  with Shri  Bachawat that it would not have been possible to  recognise the  assailants; but then, as pointed out by  the High  Court, and rightly, the trial court missed the point  that the  assault had taken place about 160 yards away from  the hut  in an open place. This conclusion of the High Court  is based  on the  recovery of  one blood-stained shoe of  the deceased  found at  that place,  which has been market as  (6) in  the sketch map prepared by the IO, PW.10. Shri Bachawat  has urged that this shoe, which was marked as MO 4,  had not  been identified  by any  of the  PWs to have belonged  to  the  deceased.  The  shoe  to  be  identified, according to  Shri Bachawat,  was the  one which  was  found inside the  hut. This,  however, is  not so, as would appear from the  evidence of  the IO,  to which we were referred by Shri Shukla, as in his evidence the IO stated in para 7 that "shoe item  No.4 was  recovered from  the spot, another shoe item No.10  was recovered from Ranjit Singh’s hut". PW.2 had in her evidence identified M.O.4 to be her husband’s shoe. 4.   This  being   the  position,   we  would   accept   the prosecution case  that the assault on the deceased was in an open place  as the  shoe was blood-stained and blood-stained earth and  leaves were  also found  from where  the shoe was recovered. The  High Court  was, therefore, right, according to us,  when it  observed that  the  deceased,  after  being assaulted about  160 yards  away from  the hut,  ran to take shelter inside  the hut where he collapsed on his bed. There is not much force in Shri Bachawat’s contention that even if the occurrence  was in  an open  place the  assailants could not have  been identified  as the  assault  must  have  been during night  time, as  by early  morning Ranjit  Singh  was found in  a dying  condition when  the members of his family first met  him. The  appellants being  persons having  their fields in  the neighborhood  were  known  to  the  deceased, because of  which  it  would  not  have  been  difficult  to identify them in an open field. In the sketch map figure (7) indicates the  place where  the cots of accused Meharban and Rugga were lying. The place marked (7) is close to the place of assault  indicated by  figure  (6)  the  two  are  really intervened by a road. 5.   We have  then to decide whether Ranjit Singh had really named  the   appellants  as   his  assailants.   As  already indicated, this  has been  deposed by PWs.1, 2, 3 and 8. The High Court  has not  placed reliance  on PW.8 because of his contradictory statements  on material  points. Even  if  his evidence is  excluded, we  are left with the evidence of the three other  witnesses. As  to them  the submission  of Shri Bachawat is  that PW.3 being not a co-villager, his presence in the  village is  doubtful. But then he being a person who had proposed  marriage of  his daughter  with the son of the deceased was  not a  stranger to  the family. This apart, we are assured  of his presence because he had accompanied PW.1 to the police station on the morning of 23rd February. As to reliance on  PW.1 by  the High  Court, the grievance of Shri Bachawat is  that his  statement made  to the  police  under section  161   Cr.P.C.  was   not  available,  which  caused prejudice to  the defence,  which  is  one  of  the  grounds mentioned by the trial court in disbelieving the prosecution case. That  PW.1 had  made such a statement is his evidence; what the  IO stated  in this regard was that though PW.1 had made some  statements after lodging of the FIR, the same was

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not recorded  in the  case diary  because it  was not deemed necessary. The  IO might  have taken  this view because when PW.1 had  gone to  the police  station his  version had been recorded, and  so, repetition  of the same in the Case Diary was not necessary. On these facts the view taken by the High Court, as  against the  one by  the Sessions  Judge, appears just and proper to us. 6.   The  other   important  submission   advanced  by  Shri Bachawat is  that there  were many  other persons  in nearby villages bearing  names of  the appellants.  Indeed from the impugned judgment  it appears  that the  names  of  such  12 persons were  cited. But  these persons  being of  different villages and  the evidence  of PW.2 being that the deceased, apart from  naming the  assailants, had  given the  surnames also, and  there being nothing to suggest that the similarly named persons  of some  other  villages  had  assaulted  the deceased, this submission has not cutting edge. 7.   Shri  Bachawat’s   other  criticism   relating  to  the evidence is  regarding some  improvements and exaggerations. It is  known that  what the  court has  to  adjudge  is  the substratum of  the case  and, in  doing so,  grain has to be separated from  chaff. It  is settled  law some improvements here  and   some   exaggerations   there   or   some   minor discrepancies in  the evidence  do not  hurt the prosecution case. As  to the  core of  the present  case the  same being dying declaration  of Ranjit  Singh we  are fully satisfied, and so,  the decision of this Court in Jagga Singh vs. State of Punjab, 1994 Supp.(3) SCC 463, which has been referred by Shri Bachawat, has no application, as in that case the dying declaration had not inspired confidence, whereas one at hand does. We  have said  so because the evidence of PW.4 Dr.Das. who had done post-mortem, does not in any way show if Ranjit Singh was  not in  a position to speak, because his evidence in the  cross-examination is  that the head injury sustained by Ranjit  Singh might or might not have resulted in loss of consciousness. His  further statement  is that  the deceased might have  expired at  about 10 or 11 am, long before which he had been contacted by the aforesaid PW.s. 8.   There is  also force  in the  submission of Shri Shukla that  they  dying  declaration  has  received  corroboration because of finding of one blood-stained shirt from appellant Meharban; one  blood-stained keduwa from appellant Rooga and blood-stained lathi  recovered at  the instance of appellant Baje. No  doubt it  is correct  that the  serologist had not given the  blood groupings;  but, the  finding of  extensive stains of  human  blood  does  incriminate  the  appellants, because when  they were  questioned about  these findings in their examination  under section  313 Cr.P.C.  they had  not given any  explanation, which  it was  their  duty,  if  the blood-stains had  been contacted,  not in  the course of the occurrence but  due to  injury received  some where else, as contended by Shri Bachawat. 9.   We  may  deal  with  yet  another  submission  of  Shri Bachawat which  relates to the failure of the prosecution to bring on  record any  motive for the assaults. There are two answers to  this submission.  The first  is that  the motive lies locked  in the  heart of  a man,  and  so,  it  becomes difficult to  know the  same. Failure to bring on record any evidence  regarding  motive  does  not,  however,  weaken  a prosecution  case,   though  existence   of  the   same  may strengthen the  same. Secondly,  there is  also  nothing  on record to  show as  to why  the dying man would have falsely implicated the  appellants. Natural  presumption is  that  a dying man  does not lie, if there be no motive for the same. If false  implication would have been the motivation, Ranjit

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Singh would  have involved accused Jagannath also, with whom he had  some dispute;  but he  was not  named as  one of his assailants. 10.  Reference may  also be  made to  the contention of Shri Bachawat that  one Goppu,  in whose presence also the having declaration  was   made,  was  not  examined.  He  being  an independent  person,  would  have  been  a  better  witness, according to  Shri Bachawat.  We are,  however, of  the view that the  prosecution case  has not  been  weakened  in  any measure because of the non-examination of aforesaid Goppu in the face  of the  evidence of  the aforesaid  witnesses, who being closely  related to  the  deceased,  would  have  been loathe to  shelter the  real culprit.  Normally, a  relation witness does not do so. 11.  The aforesaid  being the  state of evidence, we confirm the conviction  as awarded  by the  High Court;  so too  the sentence which  is imprisonment  for life.  The  appeal  is, therefore, dismissed.