State v. Hargobind Mishra

1. Discharge of respondent-accused in FIR No.542/2004 under Section 302 of IPC registered at P.S. Karol Bagh, New Delhi is under challenge in this revision petition. According to learned Additional Public Prosecutor for petitioner-State, Lakhi Ram was set on fire by respondentaccused, after pouring petrol upon him. Whereas according to learned counsel for respondent-accused, the deceased had committed suicide.

2. Trial court vide impugned order of 21st November, 2006 has discharged respondent-accused for the offence of murder while holding 2013:DHC:1652 as under: - "It is well settled proposition of law that when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. In the present case, there is nothing on the record file to fix the liability on the accused, Hargovind Mishra, in the death of deceased, Lakhi Ram. The affidavit filed by the wife of the deceased coupled with the statement of witnesses recorded during investigation and reasons enumerated in the bail order dated 26.10.04 passed by the court of Sh. A.K. Garg, ld. ASJ, Delhi, there is nothing to depict that accused, Hargovind Mishra, was involved in the alleged incident. It is well settled that at the stage of framing of the charge, if the Court is certain that there is, prima facie, no material on the record file to frame the charge, the accused should be discharged."

3. At the hearing, learned Additional Public Prosecutor for petitioner- State, had contended that conviction can be solely based upon oral dying declaration made to a police officer and so, discharge of respondentaccused for the offence of murder is per se perverse. To contend so, reliance was placed upon decisions in M. Sarvana Alias K.D. Saravana v. State of Karnataka (2012) 7 SCC 636 and Paras Yadav & Ors v. The State of Bihar JT 1999 (1) SC 25.

4. Learned counsel for respondent-accused had contended that prior to the so-called dying declaration, the deceased had made a statement to ASI Ram Chander and to Kumar Brijesh Singh, In-charge of CATS not implicating anyone and there are police statements of nine persons to the effect that the deceased had set himself on fire. It was also pointed out that the wife of deceased had made a statement before the court concerned at the hearing of bail application of respondent-accused that the deceased had falsely implicated respondent-accused because deceased was having a grudge against respondent-accused, who was the Manager of the Petrol Pump where the deceased was working as salesman. It was further pointed out that no smell of petrol on the hair of the deceased was found as per CFSL report and no traces of petrol were detected in the sample soil lifted from the spot. Thus, according to respondent's counsel, there is no illegality or infirmity in the impugned order. In support of above submissions, reliance was placed upon in decisions in Surinder Kumar v. State of Haryana (2011) 10 SCC 173; J. Ramulu v. State of Andhra Pradesh JT 2008 (3) SC 23 and P. Mani v. State of Tamil Nadu 2006 [1] JCC 447.

5. At the initial stage of a criminal trial, a prima facie case has to be seen and even on strong suspicion an accused can be called upon to face the trial. The considerations, which ought to weigh with the trial court at the stage of framing of the charge, have been reiterated by the Apex Court in Sajjan Kumar v. CBI (2010) 9 SCC 368, in these words: - “It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.”

6. After having heard both the sides and upon perusal of the impugned order and the record of this case, I find that the trial court has not taken note of oral dying declaration made by deceased to the police officer, who had taken Lakhi Ram to the hospital, and has relied upon affidavit of the deceased and the statements of witnesses Radhey Shyam Gupta, Om Prakash, Kalu Ram and some of the police officials to conclude that respondent-accused had no role to play in causing the death of Lakhi Ram. Scrutiny of the material on record at the stage of framing of the charge has to be limited to the extent of finding out as to whether a prima facie case is made out or not. It is not within the domain of the trial court to see whether the material on record would ultimately result in conviction of the accused or not.

7. There is no legal impediment to base conviction on a dying declaration recorded by a police officer provided such a dying declaration inspires utmost confidence of the court. The rule requiring corroboration is merely a rule of prudence. The principles governing dying declaration as reiterated by the Apex Court in Subhash Soni v. State of M.P. (2009) 6 SCC 647 are as under: - "(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja v. State of M.P. (1976) 3 SCC 104)]

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 and Ramawati Devi v.State of Bihar (1983) 1 SCC 211]

(iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618]

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of M.P. (1974) 4 SCC 264]

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See Kake Singh v. State of M.P. (1981 Supp SCC 25]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath v. State of U.P. (1981) 2 SCC 654]

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurti Laxmipati Naidu 1980 Supp SCC 455]

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Ojha v. State of Bihar (1980) Supp SCC 769]

(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanhau Ram v. State of M.P. (1988) Supp SCC 152]