Khan Vs. State of Madhya
Pradesh  Insc
507 (8 October 2003)
Hegde & B.P. Singh.Santosh Hegde,J.
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.
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.
on 7th April, 1986, the deceased having died, the FIR was altered to include an
offence punishable under Section 302 IPC.
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.
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.
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 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
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
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.
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.
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.
the reasons stated above this appeal succeeds. The judgment and conviction made
by the courts below are set aside.
appellant shall be released forthwith (if in custody), if not wanted in any