Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. It is thus clear that, even if it is held that Amrat Ram was guilty of the offence with which he was charged, the matter must be remitted to the jurisdictional Juvenile Justice Board for determining appropriate quantum of fine that should be levied on Amrat Ram.
19. We now turn to the basic issue whether the appellants were rightly held guilty by the courts below.
20. Mr. Sushil Kumar Jain, learned Senior Advocate for the appellants has submitted that given the cross-examination of PW9-Dr. Kothari, it would be impossible to believe that Ganeshram could have made any reporting to the police as alleged. It is submitted that, according to the FIR, the incident had occurred around 8.00 p.m., while the FIR was recorded after more than three hours. Mr. Jain has further submitted that, as accepted by PW1-Sajan Bai, witnesses were clearly tutored and, as such, the value of the testimony of PWs 1 and 2 stands diminished to a great extent. Relying on the cross-examination of PW7- Laxminarayan, it is submitted that the front of the house of accused Devilal where the incident was stated to have occurred was not visible for the alleged eye witnesses. The submissions are countered by Mr. Harmeet Singh Ruprah, learned Advocate for the State. It is submitted that the testimonies of PWs 1 and 2 are quite consistent; their presence was recorded right from the initial stage of reporting of the crime; that the distance between the houses was just about 100 feet and; that there was no effective cross-examination on the issue whether they had enough opportunity to witness the incident.
21. The testimony of PW9-Dr. Kothari, shows that Ganeshram was alive when the initial examination was undertaken by PW9-Dr. Kothari. According to the witness, when he examined Ganeshram, the blood pressure could not be detected. However, that by itself does not mean that Ganeshram was not in a physical condition to make any reporting to the police two hours earlier. Paragraph 24 of the deposition of PW9-Dr Kothari shows that if the symptoms stated therein were present, it could possibly be said that the concerned person would not be in a position to speak. First of all, such assertion is purely an opinion of an expert. Secondly, nothing is available on record to show that Ganeshram had shown these symptoms either soon after the incident or DEVILAL AND OTHERS v. STATE OF MADHYA PRADESH [UDAY UMESH LALIT, J.] when his statement was recorded by PW8 Shankar Rao. No questions were put to PW1-Sajan Bai, PW2 Saman Bai and PW8-Shankar Rao in that behalf. We, therefore, reject the submission advanced on this score and find that the FIR was rightly relied upon by the courts below as dying declaration on part of Ganeshram.
22. The FIR itself referred to the presence of PW1-Sajan Bai and PW2-Saman Bai. The substantive testimony of both these witnesses clearly discloses that the appellants had opened an assault on Ganeshram which led to his death. The assertion on part of PW1-Sajan Bai that her earlier statement recorded during investigation was read over to her does not mean that she was tutored to follow the line of prosecution. It is relevant to note that no such questions were put to PW2-Saman Bai. Thus, even if the testimony of PW1-Sajan Bai is eschewed from consideration, the deposition of PW2-Saman Bai, along with the dying declaration of Ganeshram, completely clinch the matter against the appellants. Additionally, the recoveries of the weapons in question viz., lathi, sword and axe also lend sufficient corroboration to the case of the prosecution.
23. In the premises, we affirm the view taken by the courts below and find the appellants guilty of the offence with which they were charged. Their appeal, therefore, deserves dismissal. The conviction and sentence recorded by the courts below, insofar as accused Devilal and Gokul are concerned, are, therefore, affirmed and the present appeal insofar as these two accused are concerned is dismissed.
24. However, even while holding the appellant Amrat Ram to be juvenile in terms of the 2000 Act and guilty of the offence with which he was charged, we set aside the sentence of life imprisonment imposed upon him and remit the matter to the jurisdictional Juvenile Justice Board for determining appropriate quantum of fine that should be levied on appellant Amrat Ram in keeping with the directions issued by this Court in Jitendra Singh vs. State of U.P8.
25. Since Devilal and Gokul were released on bail by this Court vide Order dated 08.04.2009, they are directed to surrender before the concerned Police Station within two weeks from today, failing which the bail bonds furnished at the time of their release on bail shall stand forfeited and they shall immediately be arrested by the concerned police to undergo the sentence imposed upon them. A copy of this Order shall immediately be transmitted by the Registry of this Court to the jurisdictional Chief Judicial Magistrate and the concerned Police Station for compliance.
26. The appeal is disposed of in afore-stated terms. Divya Pandey Appeal disposed. DEVILAL AND OTHERS v. STATE OF MADHYA PRADESH [UDAY UMESH LALIT, J.]