The division judge bench of Justice Sanjay Kishan Kaul and Justice Abhay S Oka of the apex court in the case of Ramcharan (Dead) & Anr. Vs State of Madhya Pradesh it was held that in view of Section 157 of the Indian Evidence Act, 1872 the so-called dying declaration can be treated as a former statement.
BRIEF FACTS
The
factual matrix of the case is that the complainant and his wife, their
son, and two daughters-in-law were all sleeping in the home at the time
the incident happened. while the in-laws' daughters slept inside the
house and other people slept outside. The suspect entered the home about
midnight and began punching Jagannath. Even Kamlabai was beaten by the
accused when she attempted to save Jagannath. Deceased travelled there
at that moment to defend his parents. The appellants also physically
assaulted him. Although dead, he fled. The accused pursued him and
attacked him in an effort to defend himself. Those wounds were visible.
He passed away while being transported to the police station by a
tractor. The Trial Court found all nine accused persons guilty of the
offence punishable under Section 302 of Indian Penal Code (for short,
‘IPC’) with the aid of Section 149 of IPC. The
Trial Court sentenced all the accused to undergo life imprisonment for
the offence punishable under Section 302 read with Section 149 of IPC.
The accused were also separately punished for the other offences.
The learned counsel appearing on behalf of the appellant has contended that the appellants have been convicted only on the basis of the evidence of Jagannath and Kamlabai and the evidence of the two other injured persons, namely, P.W.10 and P.W.11 has been disbelieved. She submitted that in fact evidence of P.W.1 and P.W.8 also deserve to be discarded as there are number of material omissions and contradictions brought on record during their cross-examination. It was further submitted that on the ground of parity, even the appellant ought to have been acquitted.
The learned counsel appearing on behalf of the state has contended that there was no reason for the high court to discard the testimony who were injured eye witnesses.
The hon’ble court held that in view of Section 157 of the Indian Evidence Act, 1872 the so-called dying declaration can be treated as a former statement made by P.W.1 and, therefore, the same can be used for contradicting the witness. Both P.W.1 and P.W.8 tried to implicate all the nine accused by making omnibus statements. In his statement recorded by the Executive Magistrate, P.W.1 did not disclose the names of five accused including accused no.3 Boro and accused no.9 Shyam who are the appellants in these appeals. Taking overall view of the case, the conviction of the appellants cannot be sustained. As noted in order that, at the time of grant of bail, appellant no.1 (accused no.2) had undergone sentence for seven and half years and the appellant no.2 (accused 8 no.3) had undergone sentence of 10 years. The appellant in the other appeal who is accused no.9 had undergone sentence for 7 years and 10 months at the time of grant of bail.
CASE NAME- Ramcharan (Dead) & Anr. Vs State of Madhya Pradesh
CITATION- CRIMINAL APPEAL NO.162 of 2010
CORUM- Justice Sanjay Kishan Kaul and Justice Abhay S Oka
DATE- 07.12.22
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