Arvind Singh vs State Of Bihar

This is an appeal under the proviso to Section 372 of the CrPC by the appellant putting to challenge a judgment of acquittal dated 25.03.2021 passed by learned 1st Additional District and Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 428 of 2017, arising out of Dinara P.S. Case No. 153 of 2017 registered for the offences punishable under Sections 341, 323, 307, 302/120-B of the Indian Penal Code and Section 27 of the Arms Act. By the said impugned judgment, respondents No. 2 and 3 stand acquitted of the charge of commission of the offences punishable under the aforesaid Sections of the IPC and the Arms Act.

The appellant is the son of the deceased and therefore, a victim within the meaning of Section 2(wa) of the Code of Criminal Procedure, 1973 (Cr.P.C for short) having locus standi, to question the correctness of the impugned judgment of acquittal.

We have heard Mr. Yugal Kishore, learned counsel appearing on behalf of the appellant and Mr. Manish Kumar No. 2, learned Additional Public Prosecution representing the State.

We must notice, at the outset, that the appellant has brought on record the photostat copies of the depositions of the prosecution's witnesses recorded by the trial court, by way of supplementary affidavit.

The fardbeyan of the deceased Ajay Kumar Singh recorded by Satish Kumar, SHO, Kochas Police Station at 9:15 PM on 01.06.2017 at Primary Health Centre, Kochas, is said to be the basis for registration of the aforementioned Dinara P.S. Case No. 153 of 2017 disclosing commission of the offences punishable under Sections 341, 323, 307/34 of the Indian Penal Code and Section 27 of the Arms Act to which Section 302/120-B of the IPC was subsequently added under the orders of the court below, as the informant (the deceased) died soon thereafter. According to the fardbeyan, the deceased after having had his dinner had come out of his house for a walk. In the meanwhile, the wife of his co-villager Bindu Singh (Respondent no. 2 is the wife of Bindu Singh) informed him that some people were calling him. The moment he moved forward, his co-villagers Raghunath Sah (respondent No. 3), Parshuram Yadav, Ramadhar Singh, Laxman Yadav came. Respondent No. 3, thereafter, opened fire with his pistol hitting the left arm of the deceased. Second fire was shot by co-accused Parshuram Yadav in the chest of the deceased and third fire was shot by co-accused Parshuram Yadav injuring his lower abdomen. After shooting the informant thrice, the accused persons escaped. After hearing the sounds of firing, co-villagers assembled who took him to Primary Health Centre where he was undergoing treatment at the time of rcording of the fardbeyan. He alleged in his fardbeyan that the aforesaid accused persons including the wife of Bindu Singh, under a criminal conspiracy had fired at him in order to kill him.

It is worthwhile mentioning at this stage, that from the evidence of the prosecution's witnesses it transpires that the deceased was declared dead at 1:34 AM on 02.06.2017 by a Medical Officer (PW-5) at Trauma Centre, Varanasi, whereupon Section 302 of the IPC came to be added.

After completion of investigation, the police submitted chargesheet against respondents No. 2 and 3 for commission of the offences punishable under Sections 341, 323, 307, 302/120-B of the Indian Penal Code and Section 27 of the Arms Act on 29.08.2017, keeping the investigation pending against others, based on which cognizance was taken and the case was committed to the court of Sessions. The respondents No. 2 and 3 denied the charge and claimed to be tried. They were accordingly put to trial.

At the trial, altogether six prosecution's witnesses came to be examined including the Investigating Officer (PW-4), the doctor at Trauma Centre, Varanasi, who had declared the deceased dead (PW-5) and the doctor who was present at the Primary Health Centre, Kochas where the deceased was brought for treatment (PW-6). Three other witnesses, namely, Abhay Kumar Singh(PW-1), Binod Kumar Singh (PW-2) and Shiv Shankar Singh (PW-3) who are hearsay witnesses who deposed at the trial. The prosecution also brought on record the following documentary evidence in support of the charge by way of exhibits :-

(i) Formal FIR (Exhibit-1)

(ii) The endorsement on the fardbeyan for registration of FIR (Exhibit-1/1).

(iii) The death certificate issued by the Trauma Centre and Superspeciality Hospital, Medical Science Institute, Kashi Hindu Bishwavidyalaya, Varanasi (Exhibit-2).

(iv) The signature of PW-6, the doctor over the fardbeyan (Exhibit-3).

After closure of the prosecution's evidence, the respondents No. 2 and 3 were questioned under Section 313 of the CrPC so as to give them opportunity to explain the incriminating circumstances emerging against them from the evidence of prosecution. They denied the circumstances. No defence witness was, however, produced at the trial.

The trial court, after having appreciated both oral and documentary evidence adduced by the prosecution at the trial, has recorded acquittal of the respondents by judgment dated 25.03.2021, which is under challenge in this appeal.

Learned counsel appearing on behalf of the appellant has submitted that the fardbeyan of the deceased recorded by the Station House Officer ought to have been treated by the trial court as a dying declaration, which was duly proved by the prosecution at the trial. He has submitted that the endorsement made by the Doctor Vikash Kumar (PW-6) is suggestive of the fact that the deceased was conscious when his fardbeyan was recorded by the SHO, which fact ought not to have been overlooked by the trial court. He has further submitted that during the course of investigation, the confessional statement of respondent No. 3 was recorded by the police, wherein he had admitted his guilt which was not brought to the notice of the trial court. He has submitted that the trial court ought not to have rejected the dying declaration of the informant which was made when the informant was fully conscious.

We have perused the impugned judgment of the trial court as well as the depositions of the prosecution's witnesses, copies of which have been brought on record by way of supplementary affidavit. Since the submissions made on behalf of the appellant revolve around the fardbeyan of the deceased, which, according to the learned counsel for the appellant, ought to have been treated as a dying declaration, we consider it desirable to consider the said aspect first.

According to the said fardbeyan, the deceased had come out of his house after having had his dinner at 7:50 PM. This goes to suggest that the occurrence had taken place after 7:50 PM. The distance of the police station from the place of occurrence, as mentioned in the formal FIR, was 12 kilometers. After having sustained three firearm injuries in his lower abdomen, chest and left arm, the deceased was taken to Primary Health Centre, Kochas.

PW-1 is the brother of the deceased. He deposed in his examination-in-chief that when he was having his meal, upon hearing some hulla he had come out of his house and seen his brother (the deceased) being brought on a cot. The people were making enquiries from him about occurrence whereupon the deceased had disclosed that respondent No. 2 had called him, whereafter respondent No. 3 and other accused persons had shot at him. He was taken to Kochas for treatment. In his cross-examination, he testified that he had not heard any sound of firing. He expressed his inability to name the persons who were carrying the deceased on the cot. He, however, deposed that the deceased was conscious. He did not know as to which hospital/ clinic the deceased was taken to for his treatment. He further deposed that he had not told the police during the course of investigation that the deceased had disclosed to him that respondent No. 2 had called him. He had also not told the police during the course of investigation that the deceased had disclosed in injured condition that respondent No. 3 and other accused persons had shot at him. From the evidence of PW-1 it is evident that he is a hearsay witness and he had the occasion to see the deceased before his statement was recorded by the police at primary health centre. It is clear from his deposition that for the first time at the trial he deposed that the deceased had disclosed to him that the respondents no. 2 and 3 and other co-accused persons had fired at him.

Similarly, PW-2, Binod Kumar Singh is also a hearsay witness, as is evident from his deposition. He is a witness only to the deceased having seen by him in injured condition. He did not support the prosecution's case of the deceased having been killed by the respondents No. 2 and 3 and other co-accused persons in any manner.

Likewise, PW-3 Shiv Shankar Singh is also a hearsay witness and he had not even seen the deceased after the occurrence as the body was already taken to the hospital.

On the point of the fardbeyan of the deceased, whether to be treated as dying declaration, the evidence of PW-6 is of immense significance. In his deposition though he accepted his signature over the fardbeyan with an endorsement that the deceased was conscious when he was brought to the Primary Health Centre, Kochas, he clearly deposed in his cross-examination that the deceased was completely unconscious and for better treatment he was referred to better medical institution. The prosecution, thus, failed to prove at the trial that the deceased was in fit state of mental and physical health for making the statement as recorded by the SHO in the form of fardbeyan.

The deposition of PW-1 in his cross-examination that he had not told the police during the course of investigation about the fact that the deceased after having sustained injuries had disclosed that the accused persons had shot at him, renders the deposition of PW-1 in his examination-in-chief that such disclosure was made by the deceased, doubtful. Had the disclosures been made by the deceased to PW-1, there could be no reason why he would not have stated so in his statement recorded during the course of investigation before the police. The deposition of the doctor that the deceased was completely unconscious when he was brought to Primary Health Centre, Kochas gave a serious blow to the prosecution's case of fardbeyan of the deceased to be treated as a dying declaration.

The prosecution chose not to bring on record any documentary evidence regarding the treatment given to the deceased at the Primary Health Centre, Kochas before the deceased was referred to a better medical institution for treatment. The police officer, who had recorded the fardbeyan, was also not examined at the trial. In such circumstance, the prosecution cannot be said to have proved the fardbeyan as a dying declaration.

After having reached a conclusion that the fardbeyan of the deceased, which is said to have been recorded by the Station House Officer, cannot be said to have been proved at the trial and, therefore, the same cannot be treated to be a dying declaration invoking Section 32 of the Evidence Act, we are left to examine the evidence of the other two witnesses, namely, PW-2 and PW-3. They are hearsay witnesses and their evidence is of no help for the prosecution to establish the charges against respondents No. 2 and 3.

Situated thus, we do not find any merit in the present appeal against acquittal. The finding of acquittal recorded by the trial court does not suffer from any legal infirmity requiring this Court's interference.

This appeal is accordingly dismissed.’