Dharmendra Kumar @ Dhamma vs State of Madhya Pradesh

161 CrPC, to be a dying declaration – Thus, the order passed by the High Court upheld – Evidence.[Paras 44, 51, 58, 61, 69, 70] Evidence – Contradictions in the prosecution case – Omission on the part of the Investigating Officer in marking a spot where incident took place, on the site plan – Effect: Held: Mere omission on the part of the Investigating Officer does not deflect the prosecution case – Site plan merely denotes the location of the incident without implying further details – In light of the fact that the persons who had seen that to which they have testified, due weightage must be given to their first-hand version – Their evidence cannot be jettisoned merely because the I.O. forgot to describe the room on the spot map – It is a case where eyewitnesses corroborated each other; their depositions are reinforced by deceased himself in his statement recorded u/s. 161 CrPC, and the location of the incident is depicted on the spot map as a `brick room’ – Thus, stands established that there was another Jhuggi where the deceased sought refuge and was eventually assaulted – So-called contradiction fails to invade the corpus delicti. [Paras 33, 34]

First information report – Non-reading of contents of FIR to the complainant – Effect:

Held: Subject FIR fully satisfies all the ingredients of s. 154 CrPC – During the cross-examination, the complainant-informant claimed that the Police neither read out the FIR to her nor did it mention the contents of her statements which were recorded by the Police – Assuming it to be correct, such omission did not cause any prejudice to the appellant – Not a case where the appellant was not provided with a copy of the FIR or the charge sheet, which could have hindered his ability to effectively cross-examine the informant – Also no suggestion that he was not present at the scene, that he did not participate in the incident, or that he was falsely implicated for any reason – Appellant, thus, failed to demonstrate any prejudice resulting from the alleged non-reading of the contents of the FIR to the informant – Reading over of the information after it is written down, the signing of the said information by the informant, and the entry of its substance in the prescribed manner not obligatory, but procedural in nature, and the omission of any of them does not impact the legal consequences resulting from the information provided – Furthermore, when testimonies of eyewitnesses are consistent, unimpeachable, and duly corroborated by medical evidence or recovery of weapon used, the deficiencies, if any, in recording of FIR alone do not constitute a valid ground to overturn the conviction or undermine the prosecution case. [Paras 40-44] Evidence – Presence of appellant on the place of occurrence, if doubtful:

Held: No reason to doubt that the appellant was not only present at the scene of crime, but he actively participated in the occurrence and gave one of the fatal blows to deceased – Submission of poor visibility owing to darkness at the spot of occurrence not tenable – Place of occurrence, was adjacent to that of the complainant making it easier for the witnesses to observe and identify the accused persons – Each accused, particularly the appellant, was familiar to the eyewitnesses – Considering that the incident occurred on a summer night, there would have been minimal obstruction to visibility for the witnesses – Appellant, in his 313 CrPC statement, nowhere took the plea of alibi also did not pursue this defence during the cross-examination of witnesses either, as also did not adduce any evidence in support thereof – Furthermore, not a case where the complainant or prosecution witness held grudges against the appellant and fabricated a story to implicate him after the incident – Rather, the name of the appellant surfaced in the very first version, duly recorded, within less than two hours of the occurrence – Also no motive to falsely implicate the appellant indicated.[Paras 48, 49, 51]

Evidence – Disclosure statement by the appellant leading to the discovery and seizure of the knife-weapon of offence – Admissibility in evidence – Knife injury, if can be attributed to the appellant:

Held: Disclosure statement of the appellant to the extent it led to the recovery of a knife correctly admitted in evidence – Prosecution version was accepted by the courts below – It cannot be ignored that both eyewitnesses, are illiterate labourers, and their testimonies were recorded after a considerable length of time had passed since the occurrence – Both the witnesses emphatically denied that they were tutored by Police or anyone else – Unfiltered testimony of a rustic witness, even if marred with some minor inconsistencies or discrepancies, cannot debilitate its perseverance – Evidence of such witnesses has to be evaluated comprehensively and carefully, especially when the cross-examination discreetly suggests that the accused persons did make a bid to win them over by exerting some extraneous pressure – Thus, the statements of the prosecution witness does not suffer from the discrepancy of such a nature that they should be discarded – Even the testimony of the Investigating Officer is devoid of any ulterior motive or attempt to fabricate evidence or falsely implicate the appellant and his co-accused – It would be too unfair and unreasonable to expect a witness, unless parroted, to recall every minute detail of the occurrence and present it with a totally accumulative narrative – Appellant’s submission that knife injury was not caused by him, bereft of any merit. [Paras 56-58]

Evidence – Absence of blood group classification – Inconclusive FSL results on the recovered weapon – Effect on the prosecution case:

Held: Upon a thorough examination of the FSL report, its confirmed that the blood group classification test conducted on the recovered knife yielded inconclusive results – However, the human blood was detected on the knife recovered at the instance of the appellant – Various weapons, including lathis and even the knife attributed to accused underwent an FSL examination, yet, no traces of human blood were found on them – Notably, human blood was solely found on the knife used by the appellant – Furthermore, non-explanation of human blood on the weapon of crime constitutes a circumstance against the accused – It is incumbent upon the accused to provide an explanation regarding the presence of human blood on the weapon – Appellant failed to do so – While it may not be a decisive factor to determine the guilt, but conspicuous silence does lend support to prosecution case. [Para 61]

Code of Criminal Procedure, 1973 – s. 161 – Statement made by deceased to a police officer u/s. 161, regarding cause of death – Admissibility as dying declaration:

Held: s.161 empowers the Police to examine orally any person who is acquainted with the facts and circumstances of the case under investigation – Police may reduce such statement into writing also – s. 162(1), nonetheless, mandates that no statement made by any person to a Police Officer, if reduced to writing, be signed by the person making it, nor shall such statement be used in evidence except to contradict a witness in the manner provided by s. 145 of the Evidence Act – However, Sub-Section (2) of s.

162 carves out an exception to Sub-Section (1) that nothing in s.

162 shall be deemed to apply to any statement falling within the ambit of clause (1) of s. 32 of the Evidence Act – Statement made by a person who is dead, as to the cause of his death or to the circumstances of the transaction which resulted in his death, to a Police Officer and which has been recorded u/s. 161, shall be relevant and admissible, notwithstanding the express bar against use of such statement in evidence contained therein – In such eventuality, the statement recorded u/s. 161 assumes the character of a dying declaration – Since extraordinary credence has been given to such dying declaration, the court ought to be extremely careful and cautious in placing reliance thereupon. [Para 64] Code of Criminal Procedure, 1973 – s. 161 – Consideration of the statement of one of the deceased recorded u/s. 161 before his death, as a dying declaration – Non-obtainment of a medical fitness certificate by the investigating officer from the medical officer – Effect:

Held: As regard to the assessment of mental fitness of the person making a dying declaration, it is indubitably the responsibility of the court to ensure that the declarant was in a sound state of mind – This is because there are no rigid procedures mandated for recording a dying declaration – If an eyewitness asserts that the deceased was conscious and capable of making the declaration, the medical opinion cannot override such affirmation, nor can the dying declaration be disregarded solely for want of a doctor’s fitness certification – Requirement for a dying declaration to be recorded in the presence of a doctor, following certification of the declarant’s mental fitness, is merely a matter of prudence – On facts, investigating officer recorded the statement instantly, a day after the incident, categorically stating that the medical report did not mention that the condition of the declarant, was serious in nature – On perusal of the statement, it is clear that the declarant was in a fit condition as not only did he properly explain the incident but has also markedly specified the role of the appellant – That apart, the injuries found during the post-mortem examination conducted by the doctor have duly corroborated the statement of deceased – Mere non-obtainment of a medical fitness certificate would not deter the Court from considering a properly recorded statement u/s. 161 to be a dying declaration. [Para 70] First information report – Object of:

Held: FIR is not a substantive piece of evidence, and it can be used only to corroborate or contradict the version of an informant – Also written complaint to register the FIR not necessary – Even an oral communication to the Police disclosing the commission of a cognizable offence is sufficient to register the FIR – Object of the FIR is to inform the jurisdictional Magistrate and the Police Administration of the offence reported to the Police Station; to acquaint the Judicial Officer before whom the case is ultimately tried as to what are the actual facts stated immediately after the occurrence and on what materials the investigation commenced; and most importantly, to safeguard the accused against subsequent variations, exaggerations or additions. [Paras 38, 39]