Companies Act Case Law Khalil Khan Vs State Of Madhya Pradesh

Appeal (crl.) 693 of 2003



DATE OF JUDGMENT: 08/10/2003




The appellant in this Appeal was convicted by the learned
Sessions Judge, Shiv Puri in Sessions Case No. 65 of 1986 for an
offence punishable under Section 302 IPC and was sentenced to
undergo imprisonment for life and was further imposed a fine of
Rs. 1,000/- in default to undergo further rigorous imprisonment
for a period of six months. His appeal to the High Court of
Judicature of Madhya Pradesh, Gwalior Bench, having failed , he
is before us in this appeal.
Brief facts necessary for the disposal of this case are that on
6th April, 1986 at about 11 P.M., in view of certain prior enmity,
the appellant stabbed and killed one Wahid Khan, son of Bashir
Khan. According to the prosecution there were no eye witnesses
as such witnessing the incident but Rashid Khan (PW-3),
Munshi Sani Mohammad (PW-4) and Nasir Khan (PW-6) and
Imami (PW-9) had seen the appellant running away with the
knife in his hand. It is the further case of the prosecution. PWs.
2, 3, 5, 6 & 8 heard the deceased say that it was appellant who
stabbed him. The prosecution further states that when the
deceased was taken to police station- Shiv Puri by PWs. 1,2,5
and 6 he again told the head constable Ram Singh (PW8) that
the appellant had stabbed him. Hence a FIR (Exhibit P-6) was
lodged at about 11.40 P.M. in the same night. That FIR does
mention the fact that the deceased had made a dying declaration
naming the appellant as the accused. Originally the FIR
registered was for an offence under Section 307 IPC.
Subsequently on 7th April, 1986, the deceased having died, the
FIR was altered to include an offence punishable under Section
302 IPC.
The prosecution relied on the said dying declaration as well
as the evidence of PWs. 2, 5 and 8 as also on the recovery of a
blood stained knife and blood stained personal clothes of the
appellant. The trial court as well as the High Court have accepted
this evidence to base a conviction as against the appellant.
Shri Rishi Malhotra, learned counsel for the appellant
contended that the prosecution has failed to establish that the
deceased could have been in a fit condition to make a dying
declaration or for that matter he did make a dying declaration.
He also contended that the evidence of PWs. 2, 5 & 8 who stated
before the Court that they had heard the deceased, naming the
appellant, cannot be believed because these witnesses have made
improvements in their evidence as to the dying declaration
because in their first statement recorded by the investigating
officer under Section 161 of the Crl. P.C. they did not make any
such statement regarding they having heard the dying
declaration made by the deceased. He also contended that the so
called recovery of the knife as also the clothes which were found
to be stained with human blood cannot be relied upon because
one of the prosecution witnesses who had witnessed the said
recovery had specifically stated that these articles were found in
the police station and the same was recovered from there and not
at the instance of the appellant.
Ms. Vibha Dutta Makhija, learned counsel appearing for
the State however, contended that the fact, that PWs. 2,5 & 8 were
present when the deceased made the dying declaration, is
corroborated by the contents of the FIR. Therefore assuming that
this fact was not mentioned in the previous statement, it would not
make any difference to the prosecution case. She also contended
while one of the witnesses of recovery has turned hostile, the other
witness having supported the prosecution, his evidence is
sufficient proof of the recoveries made by the investigating
We have heard the learned counsel for the parties and
perused the records as noted above. The prosecution case rests
mainly on the fact that the deceased had make a dying
declaration. This fact assumes all importance because there was
no eye witness to the incident. Apart from all other discrepancies
in the evidence of PWs. 1,2,5 & 8 , we notice that this important
fact, namely, that the deceased did make a statement implicating
the appellant as the assailant, was not made to the investigating
officer when their statements were first recorded and their saying
for the first time before the court this fact raises some doubts as to
the veracity of said fact. Taking into consideration the nature of
injuries suffered and the prosecution evidence itself that the
deceased while being taking to the hospital had become
unconscious, we think it is not safe to rely upon the evidence of
these witnesses who have made this important statement as to the
dying declaration for the first time before the Court. While
holding so, we have borne in mind the fact that all these witnesses
are very closely related to the deceased.
If this part of the evidence of the prosecution is to be
excluded then, in our opinion, there is no sufficient material to
hold the appellant guilty. Be that as it may, we may refer to the
recovery part relied upon by the courts below. We notice that one
of the witnesses to the recovery has not supported the prosecution
case. That apart the incident in question had taken place on 6th
April, 1986 and the accused was arrested only on 11th April, 1986,
nearly four days thereafter. We find it extremely difficult to
believe that a person who is involved in such a serious crime like
murder would still be wearing clothes which are blood stained
even four days after the murder which fact we find is opposed to
normal human conduct. In this background, the evidence of the
hostile witness that the recoveries were made at the police station
assumes importance. We think it is not safe to place reliance on
this part of the prosecution case also.
Since, in our opinion, the prosecution case in regard to the
dying declaration and also the recovery is not beyond reasonable
doubt, hence, the benefit of the same must go to the appellant.
For the reasons stated above this appeal succeeds. The
judgment and conviction made by the courts below are set aside.
The appellant shall be released forthwith (if in custody), if not
wanted in any other case.
Appeal allowed.



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