Full Judgment Text
2024 INSC 20
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1348 OF 2011
JITENDRA KUMAR MISHRA
@ JITTU …APPELLANT
VERSUS
THE STATE OF MADHYA PRADESH …RESPONDENT
WITH
CRIMINAL APPEAL NO. 1347 OF 2011
J U D G M E N T
PANKAJ MITHAL, J.
1. Heard learned counsel for the parties.
2. Four persons namely Manja alias Amit Mishra, Jitendra Kumar
Mishra @ Jittu, Gledwin alias Banti Isai and Ajay alias Ajayya
Signature Not Verified
Digitally signed by
RAVI ARORA
Date: 2024.01.05
18:09:13 IST
Reason:
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
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fine with a further rigorous imprisonment for six months in
Sessions Trial Number 378 of 2007 vide judgment and order
th
dated 15.09.2008 passed by the 13 Additional Session Judge
(Fast Track), Jabalpur, M.P.
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.
4. It is in connection with the aforesaid Sessions trial and the
conviction of the appellants under Section 302/34 IPC that the
present appeals have been preferred one by Manja @ Amit
Mishra and Jitendra Kumar Mishra @ Jittu and another by
Gledwin @ Banti Isai and Ajay @ Ajayya. Both the appeals were
tagged and leave to appeal was granted on 08.07.2011. During
the pendency of the appeal, one of the appellants, namely,
Manja @ Amit Mishra in Criminal Appeal No. 1348 of 2011 died.
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Therefore, the said appeal is being pressed only on behalf of the
appellant- Jitendra Kumar Mishra @ Jittu.
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.
6. The information of the alleged incident of beating and assaulting
the deceased Pappu was given by one Virendra Kumar (PW-1)
at about 09.00 PM to the brother of the deceased, i.e., Rajkumar
Yadav and his mother Usha Rani Yadav. On receiving the said
information, both Rajkumar Yadav and his mother rushed to
the place of occurrence and found the deceased Pappu Yadav
lying on road in a pool of blood. The mother of the deceased took
the head of Pappu Yadav in her lap whereupon clothes were tied
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on his wounds by Rajkumar probably to stop bleeding. They
took the deceased in a rickshaw to the Police Station
Ghamapur. After Rajkumar Yadav (complainant) lodged the
report (FIR exhibit P/2 at 09.30 PM), he took the deceased to
the Victoria Hospital, Jabalpur for treatment where he was
declared dead.
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
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to what had happened to him when she saw him lying on the
road in a pool of blood.
8. The statement of the mother of the deceased PW-5 also contains
a similar dying declaration of the deceased.
9. 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.
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.
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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 chargesheeted 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.
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.
12. The above witness was not found at the place of occurrence by
the brother and mother of the deceased when they reached the
place of occurrence immediately after the alleged incident had
taken place or at the time when the deceased was lying on the
road. They have not mentioned about his presence though he
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ought to have been there as he had tried to save the deceased.
Even the deceased has not mentioned in his alleged dying
declaration or the statement given to his brother and mother
that someone tried to save him or that the above witness Rahul
Yadav (PW-13) had come to his rescue but was made to run
away. Additionally, even the FIR does not mention the presence
of PW-13. All these factors cast a serious doubt as to presence
of PW-13 and the conviction cannot be based on his testimony
alone.
13. The FIR specifically mentioned that the incident was witnessed
by Virendra and Amit Jha, the friends of the deceased who were
with him at the time of incident. Both these two persons have
not supported the prosecution case.
14. These two eye-witnesses to the incident (i.e. Virendra (PW-1)
and Amit Jha (PW-12), were declared hostile and as such their
depositions are of no use now.
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,
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PW-9) 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.
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
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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.
17. We are conscious of the fact that the appellate court should be
slow in interfering with the conviction recorded by the courts
below but where the evidence on record indicates the
prosecution has failed to prove the guilt of the accused beyond
reasonable doubt and that a plausible view, different from the
one expressed by the courts below can be taken, the appellate
court should not shy away in giving the benefit of doubt to the
accused persons.
18. In the overall facts and circumstances of the case, we are of the
opinion that the courts below ought to have extended the benefit
of doubt to the appellants. Accordingly, we are of the opinion
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that the conviction and sentence of the appellants are liable to
be set aside and are hereby set aside by granting the benefit of
doubt. They stand acquitted and are set free. They are on bail,
their bail bonds are discharged.
19. The appeals are allowed.
……………………………….. J.
(ABHAY S. OKA)
……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
JANUARY 5, 2024.
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