Hon'ble RATHORE, J. - (1.) -Heard the learned counsel for the appellant as well as the learned Public Prosecutor.
(2.) THIS appeal, under Section 374Cr.P.C., has been filed by the accused-appellant challenging the order dated 7.11.1985 passed by learned Sessions Judge, Kota in Sessions Case No. 97/85 whereby he has been convicted under Section 304 Part II IPC and sentenced to seven years rigorous imprisonment and a fine of Rs.500/-, in default of which to further undergo one month rigorous imprisonment. He has also been convicted under Section 324 IPC and has been sentenced for one year rigorous imprisonment and a fine of Rs.250/-, in default of which to further undergo 15 days rigorous imprisonment. In short, the prosecution case is that one Abdul Sattar lodged a report on 8.3.1985 at about 6.15pm. This report was in respect of an incident, which took place on 7.3.1985 at about 8.00 pm. at his residence situated Indira Gandhi Nagar, Kota. It is stated in the report that in the evening of 7.3.85 when the informant Abdul Sattar was sitting outside the house of Bherulal Sunar, Devi Shanker, Ramavatar, Radhey Shyam and Hemraj came. Devi Shanker demanded Rs.20/- on knife point. Bherulal told him to keep away the knife and that he was bringing the amount. Bherulal then went away. Abdul Sattar had also gone. Later, he was informed by a boy that some quarrel had taken place at his residence and when he went there, he found all the four persons namely; Devi Shanker, Radhey Shyam, Ramavtar and Hemraj standing. Devi Shanker inflicted a knife blow on his right and left hip and Ramavtar gave a "Sariya blow on his left knee and at the back of his head. Resultantly, the informant Abdul Sattar fell down. Thereafter his brother Mohammed Amin came to rescue him but Devi Shanker inflicted a knife blow on his private parts. His wife Jahida and sister Rashidan also came to rescue but they were also injured by Devi Shanker with the knife. Subsequently Badrinath and other neighborers collected and they had seen the incident. On the aforesaid report, police registered a case against all the four persons at Police Station, Udhyog Nagar, Kota for the offence under Section 307 IPC. The investigation then commenced and after recording of the evidence including that of the eye-witnesses etc., challan came to be filed on 11.4.1985 before the Court concerned. It is to be noted that during the course of investigation, Rashidan died on 11.3.85 and as such the case was converted into one under Section 302/34 IPC. Thereupon learned Magistrate committed the case to the Court of Sessions Judge, Kota. The learned Sessions Judge, Kota framed charges against accused-person Devi Shanker for the offences under Sections 302 and 324 IPC and against Ramavtar, Hemraj and Radhey Shyam for the offences under Sections 302/34 and 324/34 IPC. All the accused-persons denied charges and claimed for trial. The prosecution, in support of its case, produced 11 witnesses and also filed the documents collected during the course of investigation, which were duly exhibited. The statements of the accused were then recorded under Section 313Cr.P.C. Against they had denied the allegations levelled against them by the prosecution. On completion of the trial, the learned Sessions Judge, Kota convicted and sentenced accused-Devi Shanker for the aforesaid offences. However, the accused-persons namely; Radhey Shyam, Hemraj and Ramavtar were acquitted from the charges levelled against them. Hence, the present appeal. The learned counsel for the accused appellant has assailed the impugned judgment dated 7.11.1985 passed by the learned trial Court on various grounds. He has submitted that keeping in view the evidence on record produced by the prosecution, no offence is made out against appellant Devi Shanker as they have failed to prove the case beyond reasonable doubt. He has also submitted that all the prosecution witnesses, except Mohammad Amin had not supported the case of the prosecution and as such they had to be declared hostile. In respect of Mohd. Amin, PW.5 also, the learned counsel for the accused-appellant has submitted that a perusal of his statement in its entirety would go to show that he does not support the prosecution case in respect of basic facts of the case. He has particularly referred to the cross- examination of the said prosecution witness. It has also been submitted by the learned counsel for the appellant that other ground on which the learned trial Court has based its finding as well as the judgment is the statement of deceased Rashidan, which was recorded by the police under Section 161Cr.P.C. According to him, the said statement could not have been treated as a dying declaration and there was no question of forming it as the basis for holding the accused-appellant guilty of commission of the crime. In this regard, he has submitted that it is a settled principle of law that a statement recorded under Section 161Cr.P.C, in case of death of the witness, cannot be treated as a dying declaration under Section 32 of the Evidence Act. In support of his submission, he had placed reliance on the case of Sukhar vs. State of Uttar Pradesh, AIR 1999 SC 3883 and the case of Munnawar & Ors. vs. State of Uttar Pradesh, JT 2010(4) SC 505. Contrary to it, the learned Public Prosecutor has supported the judgment passed by the learned trial Court and submitted that the same does not suffer from any illegality or infirmity. He has also submitted that the judgment passed by learned Court below is based on legal evidence on record and it cannot be said that the prosecution has failed to prove its case beyond reasonable doubt. He has supported the findings of the learned Court below in respect of the reliability of the statement of Mohd. Amin, PW.5 and the statement of deceased Rashidan recorded under Section 161Cr.P.C, during the course of investigation and submitted that it should be treated as her dying declaration, on her death which occurred later on. Therefore, the learned Public Prosecutor has submitted that the appeal filed by the accused-appellant deserves to be dismissed.
(3.) ON having given my anxious and thoughtful consideration to the facts and circumstances, evidence on record, and the submissions made by the counsels for the rival parties, I am of the view that this appeal has merit. Apart from the material facts with which the prosecution had unfolded its case, they had come with five eye witnesses namely; Abdul Sattar, (PW.1); the informant Jahida, (PW.2); Bheru Lal, (PW.3); Mohd. Khan, (PW.4) and Mohd. Amin, (PW.5). it may be noted here that, as many as, four eyewitnesses which included the informant Abdul Sattar had not supported the prosecution case and as such they had to be declared hostile. Even in respect of the fifth witness namely; Mohd. Amin, PW.5, the learned Public Prosecutor had to seek permission for his cross-examination, at the time of re- examination, of the witness. Ultimately, the prosecution case hinges only on the statement of the deceased Rashidan, which was recorded by the police, before her death, under Section 161Cr.P.C, during the course of investigation and on the statement of Mohd. Amin (PW.5). A look to the statement of Mohd. Amin goes to show that, at the initial stage, he had supported the prosecution case by deposing that it was Devi Shanker, who had inflicted knife injury to his sister Rashidan. He had also stated that he is not knowing the other three persons who are said to have accompanied accused-Devi Shanker. In the cross-examination, the prosecution witness had made some important disclosures, which runs contrary to his earlier statement, such as : JUDGEMENT_804_RAJLW1_2011Image1.jpg JUDGEMENT_804_RAJLW1_2011Image2.jpg ;