Pappu @ Dayaram Vs. State of M.P
Madhya Pradesh High Court (Division Bench (DB)- Two Judge)
Criminal Appeal, 949 of 2012, Judgment Date: Jun 03, 2021
Law laid down -
Section 32 of Indian Evidence Act – Dying Declaration-The conviction can be based solely on the basis of an oral dying declaration provided such declaration is free from any doubt and its correctness and genuineness is out of question.
Multiple Dying Declarations - If there are more than one dying declaration, Court needs to examine qualitative worth of each declaration and not number of declarations.
The dying declaration must be examined with utmost care and caution because the maker of such declaration cannot be put to cross-examination.
Inconsistencies in two Dying Declarations – In the first declaration, deceased did not take anybody's name and stated that two unknown persons assaulted and thrown him in the well whereas in the second declaration, he took the name of appellant and three unknown persons for committing said act. This is material inconsistency and contradiction between two dying declarations which causes serious dent on the story of prosecution.
Appreciation of Evidence - It was the minimum expectation from the Court below to assign reasons if one dying declaration is found to be trustworthy and another is discarded. Adequate and justifiable reasons should have been given for accepting one declaration and discarding another which exercise is totally missing.
Effect of not declaring the PW.1 as hostile- Dhansingh (PW.1) is an independent witness before whom first dying declaration was given. He was not declared as hostile. There was no reason to disbelieve his statement.
Last Seen Theory – It is not prudent to base the conviction solely on last seen theory. There must be something more establishing connectivity between commission of crime and the accused.
Benefit of Doubt- The impugned judgment is based on second dying declaration and last seen theory. The second dying declaration was found to be not trustworthy and last seen evidence was also a weak piece of evidence. Thus, appellant is given the benefit of doubt and impugned judgment is set aside.
Pappu @ Dayaram Vs. State of M.P