Appeal against conviction
2. Four persons namely Manja alias Amit Mishra, Jitendra Kumar Mishra @ Jittu, Gledwin alias Banti Isai and Ajay alias Ajayya were convicted to life imprisonment under Section 302 r/w 34 IPC with a fine of Rs.5000/- each, and in default of payment of fine with a further rigorous imprisonment for six months in Sessions Trial Number 378 of 2007 vide judgment and order dated 15.09.2008 passed by the 13th Additional Session Judge (Fast Track), Jabalpur, M.P.
Hon’ble High court confirmed conviction
3. On appeals, i.e., Criminal Appeal No.2031 of 2008 preferred by Manja @ Amit Mishra and Jitendra Kumar Mishra @ Jittu together and Criminal Appeal No. 2237 of 2008 preferred by Gledwin @ Banti Isai and Ajay @ Ajayya together, the conviction and sentence awarded by the Session Trial was upheld and both the appeals were dismissed by the High Court.
Incident
5. The incident is of 08.06.2007 which probably took place around 08.45 pm in the night, in front of Machchu Hotel which is located near Shukla Hotel within the jurisdiction of Police Station Ghamapur, Jabalpur. In the said incident, one Pappu alias Rajendra Yadav had died. It is alleged that when he along with his friends Virendra Verma and Amit Jha was coming out of the Machchu Hotel, he was beaten and assaulted by all the four accused with knife and other weapons such as sickle and kesia.
Dying declarations of deceased
First dying declaration is to his brother
7. The prosecution is based upon the dying declaration of the deceased. The said dying declaration is in oral form. It was made by the deceased to his brother Rajkumar Yadav and mother Usha Rani Yadav who have reached the place of occurrence on being informed that the deceased was being beaten and assaulted by the accused persons near Machchu Hotel. The dying declaration as revealed by Rajkumar Yadav was made by the deceased on the asking of the mother as to what had happened? It is in response to the above query that the deceased stated that the Banti Isai, Manja, Ajay have assaulted him with knife, dagger and kasia respectively whereas Jittu caught both his hands. The above dying declaration is in the shape of an answer to the question asked by the mother of the deceased as to what had happened to him when she saw him lying on the road in a pool of blood.
Second dying declaration is to his mother
8. The statement of the mother of the deceased PW-5 also contains a similar dying declaration of the deceased.
Eye-witness (PW-13) testimony of the incident
9. The statement of the mother of the deceased PW-5 also contains a similar dying declaration of the deceased. In addition to the above dying declaration, reliance has been placed upon the testimony of one of the eye witnesses, Rahul Yadav (PW-13). The said witness stated that the incident in which the deceased Pappu Yadav was killed had taken place between 08.30 pm to 09.00 pm on 08.06.2007 near Machchu Hotel. He was returning from his friend’s house and when reached near Shukla Hotel, he saw the accused persons namely Banti, Manja, Jitendra and Ajay beating Pappu Yadav. He tried to rescue Pappu Yadav but the accused persons drove him out. He then rushed to the House of Pappu Yadav to inform about the incident to his family members, but he found no one at the house and therefore left for his home.
PW-13 is an interested witness with criminal background
10. It has come in evidence that Rahul Yadav (PW-13) is a relative of the deceased Pappu Yadav and as such he is not a free and independent witness. He is likely to be an interested witness. The evidence reveals that he is a person with criminal background. He is involved in one of the cases registered under Section 324 and 326 IPC. He has been charge sheeted under Section 3/5 of the Explosive Substance Act. He has avoided the process of the Court and had been absconding for almost 7 months.
SOC cannot be visible from the hotel where the witness have seen the occurrence
11. In view of his above background, his testimony has to be considered with great circumspection and cannot be relied upon blindly without taking into account available corroborative evidence on record, if any. The evidence on record (i.e. site map) cast a serious doubt as to whether the place of occurrence or the Machchu Hotel was visible from the Shukla Hotel where the above witness was standing and from where is said to have seen the occurrence of the incident.
Analysing Dying Declaration
15. Now coming to the dying declaration made by the deceased to his brother and mother. We find that the injuries sustained by the deceased were very grave. The doctor (Dr. Abhishek Singh) who performed the postmortem at Medical College, Jabalpur opined that the left lung of the deceased was punctured causing respiratory failure and the left lung was pale. The heart injury sustained by him could have caused excessive bleeding and in that situation the person would have died between 5 to 10 minutes of receiving such injuries or within a maximum of 15 minutes. The postmortem report on record which was duly proved reveals that the deceased had died due to haemorrhage shock and cardio-respiratory failure. Apart from the injuries referred above, the deceased had suffered other serious injuries, not only on neck, chest and abdomen but also on the lower limbs from where bleeding had taken place. There was also an injury on the skull.
There is no evidence in record to prove the deceased was alive and in position to speak to his brother and mother
16. The brother of the deceased Rajkumar Yadav is a lawyer by profession. The brother and the mother of the deceased had rushed to the spot only after receiving information of the incident from PW-1 who after seeing the accused persons assaulting the deceased had gone to their house to inform of the incident. All this, obviously, could have consumed 15-25 minutes which means that by the time they reached the place of occurrence, the deceased could not have survived so as to make any declaration. There is no specific material piece of evidence to establish that the deceased was alive or in a position to speak when his brother & mother reached the spot. In these circumstances, the dying declaration cannot be ex facie accepted to be correct unless it stands corroborated by any other cogent evidence. There is no material to corroborate the said dying declaration.
Parties
JITENDRA KUMAR MISHRA @ JITTU …APPELLANT VERSUS THE STATE OF MADHYA PRADESH …RESPONDENT CRIMINAL APPEAL NO.1348 OF 2011 with CRIMINAL APPEAL NO. 1347 OF 2011 = JANUARY 5, 2024 – 2024 INSC 20.
https://main.sci.gov.in/supremecourt/2010/30954/30954_2010_15_1501_49186_Judgement_05-Jan-2024.pdf
jitendra kumar mishra @ Jittu vs. The state of M.P
Further study
Dying Declaration: Disbelieving the dying declaration recorded (appreciation)
Omission to state oral dying declaration in section 161 Cr.P.C statement – value of.
Dying Declaration – No stereotypical approach can be adopted by courts
Appreciation of evidence of dying declaration – explained
Whether dying declaration can be treated as statement or confession if maker survives?
Appreciation of dying declaration and recovery from open place (section 32 & 27 Evidence Act)
Dying declaration cannot be believed if it is in impeachable quality
Wife poured kerosene and the husband taking undue advantage lighted with matchstick. Hence murder.
