LexSTATE OF MADHYA PRADESH versus DHIRENDRA KUMAR
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STATE OF MADHYA PRADESH. v. DHIRENDRA KUMAR NOVEMBER 5, 1996 [G.N. RAY AND B.L. HANSARIA, JJ.] Indian Penal Code, l 860: Section 302-Murder-Evidence of eye witnesses-Dying declaration recorded-Recovery of revolver-Omission A B in FIR of dying declaration-Effect of-Conviction by Trial Court- Acquittal by High Court-Held, FIRs are not taken as encyclopedia- Omission of dying declaration in FIR does not moke it unbelievable- C High Court not justified in acquitting the accused-Acquittal set aside. Death sentence-Not rarest of rare type-Acquittal set aside- Convicted for murder and sentenced to imprisonment for life. Indian Evidence Act, 1872: Section l 14 Illustration (a)-Held, it is D permissible to presume that a person in possession of stolen goods soon after the theft is a thief Judicial notice-Roznamcha not properly maintained-Prescribed registers not available-Case dairy not maintained-Judicial notice could E be taken. One 'M' was killed by the respondent. The respondent was a tenant of PW-3 whose daughter-in-law was deceased 'M'. The deceased had reported to her mother-in-law, PW-2 that the respondent had an 'evil eye' on her. The dying declaration of the deceased was recorded. F But there was no mention about dying declaration in FIR. The revolver by which death has been caused was recovered from the respondent. The Rojnamcha had not properly maintained in the prescribed forms with pagination in it. The prosecution adduced evidence relating to motive of the crime, eye witness to the occurrence, dying declaration and recovery of the revolver. G The Trial Court convicted the respondent under s. 302 of the Indian Penal Code 1860 and awarded death sentence. On H 443 444 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R. A appeal, the High Court acquitted the respondent. Hence, the present appeal. Allowing the appeal, this Court HELD: 1. The High Court while acquitting the accused has taken B a view which is unreasonable. Therefore, the acquittal is set aside. [451 A) 2. PW-2 had stated that she had spoken to her husband PW 3 on the very day 'M' told about the respondent having an 'evil eye' which was about 15 days before the occurrence, whereas the evidence C of PW 3 is that his wife had stated to him about this aspect 7-8 days before the occurrence. This little discrepancy is not enough to discard the otherwise consistent evidence on this point, especially when the statement made by PW 3 that he had asked the respondent to vacate the house, was not challenged in the cross-examination. The omission of PW-3 to tell during investigation that his wife had asked him to D get the house vacated is not enough to disbelieve PW-2 that she had asked her husband to do so. The findings of the High Court on this point is totally against the weight of evidence on record. [446 E-GI 3.1. The view taken by the High Court regarding the deceased being not in a position to make dying declaration was really perverse. E The evidence of PW-7, the Doctor was that the deceased, despite the injuries found on her person was in a position to speak for about 10- 15 minutes. [447 F,GJ 3.2. Merely because there is no mention in the FIR about the dying declaration, the evidence of PW-I and PW-2 regarding dying F declaration cannot be discarded. Evidence of witnesses has to be tested on its own strength and ·weakness. It is a settled law th.at FIRs are not taken as encyclopedia and omission of a fact therein, even if material cannot by itself make the witness deposing about that fact unbelievable at that point. [448 El G Ram Kumar v. State of Madhya Pradesh, [1975) SC 1024 held inapplicable. 5. The recovery of the revolver from the person of the respondent itself would bear the statement of PW-11 regarding the respondent H having stolen the revolver. Under illustration (a) to section 114 of STATE OF M.P. v. DHIRENDRAKR. [HANSARIA, J.] 445 Evidence Act it is permissible to presume that if a man is in possession A of stolen goods soon after the theft, he is the thief. [450 r.,H] 6. The High Court disbelieved the prosecution since Rojnamcha had not been properly maintained with pagination in it. It was explained that since prescribed forms are not available, the Traffic Register was used as Roznamcha. Judicial notice can be taken of the B fact that many a time prescribed registers are not available, and so, they are kept in non-prescribed way. Many a time even a case diary is not
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