Bibhuti Mandal and Rojin Mandal vs The State of Bihar

R.N. Prasad, J.—The Appellants have preferred this appeal against the judgment and order dated 18.4.1987 passed by 3rd Additional Sessions Judge, Dumka in Sessions Trial No. 68/38 of 1981/85 whereby the Appellants have been convicted for the offence u/s 302/34 of the Indian Penal Code and have been sentenced to undergo imprisonment for life.

The prosecution case is that Baldeo Prasad Mandal, the deceased, gave his fardbeyan in State Hospital, Rajmahal on 5.6.1980 at about 12.30 P.M. that yesterday night at about 8 P.M. after taking meal he went to his mango orchard situated at north west of the village. He heard some sound. He flashed his torch and saw that Appellant Bibhuti Mandal was plucking mangoes. He asked him to come down. He came down from the mango tree along with a plastic bag in which there were 15-20 mangoes. He caught him and proceeded towards the road. In the meantime, he saw in the light of torch Rojin Mandal coming down from the tree. He gave order to assault on which Bibhuti Mandal took out a knife from the waist and gave a dagger blow on the left side of the stomach. He raised alarm on which Vijay Bind, Chedi Mandal, Rupan Mandal, Arjun Mandal, Chandra Mandal and others came, the accused persons ran away towards west. The villagers took him to Raj Majhal Hospital for treatment where he gave his fardbeyan.

On the aforesaid fardbeyan, Ext. 1, a formal first information report was drawn and investigation was taken up for the offence u/s 307 of the Indian Penal Code. During the investigation the informant died and as such the case was converted u/s 302 of the Indian Penal Code. On completion of the investigation chargesheet was submitted, cognizance was taken and the case was committed to the court of sessions for trial.

The trial court convicted the Appellants for the offence u/s 302/34 of the Indian Penal Code as stated above.

The defence of the Appellants was that they were innocent and had been falsely implicated in this case.

The prosecution in support of its case examined seven witnesses out of whom P.W. 1 is an eye witness, P.W. 2 is witness to the fardbeyan and signed the fardbeyan as a witness, P.W. 3 is brother of the deceased and is a hearsay witness, P.W. 4 has been tendered, P.W. 5 is son of the deceased and is also a hearsay witness, P.W.6 proved O.D. Slip, Ext. 4, and also supplementary case diary, Ext. 8, P.W. 7 is a doctor, who held postmortem over the dead body and prepared postmortem report, Ext. 7. The investigation officer in this case has not been examined.

The informant in this case was injured himself. He gave his fardbeyan on which the first information report was drawn. He was being treated in Raj Mahal Hospital but considering the seriousness of the injury he was referred to Maldah Hospital. He died there after twelve days. At the time of postmortem the dead body was identified by P.W. 5, the son of the deceased. P.W. 1 is sole eye witness to the occurrence. P.W. 2 is witness to the fardbeyan and has stated that the deceased had given fardbeyan as has been noted down by the police in his presence.

Learned Counsel for the Appellants contended that the judgment and order of conviction is bad in law as it is based on evidence of sole eye witness, P.W. 1. In this regard it would not be out of place to mention herein that for proving any fact there is no need of a particular number of witnesses. Section 134 of the Indian Evidence Act says that no particular number of witnesses shall in any case be required for proof of any fact. Therefore, it can safely be said that no particular number of witnesses is required to prove any fact. The requirement is quality of evidence. If the evidence of sole witness is wholly trustworthy, conviction can be sustained. If the evidence of sole eye witness is not wholly trustworthy, corroboration is required. Thus, I proceed to examine the evidence of the sole eye witness in the light of well settled principle of law.

P.W. 1 stated in his evidence that at the relevant time he was returning to his house. On way he saw that Baldeo Prasad Mandal, the deceased, was catching hold of Vibhuti Mandal and was taking him towards the road. One person, who was on mango tree ordered to assault on which Bibhuti Mandal, the Appellant, gave a dagger blow on the left side of the stomach of Baldeo Mandal. On alarm raised people came. He saw a dagger and one bag containing mango in the hand of Vibhuti Mandal. He could not identify the person, who was on the mango tree but subsequently he learnt that he was Rojin Mandal. The witness in cross examination stated that he was returning to his house at about 7.30 P.M. and it was a moonlit night. At the time of assault he was at a distance of 4-5 steps. After assault, Appellant, Vibhuti Mandal, ran away. The occurrence took place near the boundary wall of Orissa Company Plant. Mariao orchard of the deceased was by the side of the road. Thus, it appears that the witness stood the test of cross examination and nothing cogent could be elicited by the defence to doubt his evidence.

P.W. 5, no doubt, is son of the deceased but he did not claim to be eye witness to the occurrence rather he stated in his evidence that on hearing alarm he went to the mango orchard and found his father in injured condition. His father disclosed that Vibhuti Mandal was plucking mango. He caught him and was taking him to the house. He was assaulted by Vibhuti Mandal by a dagger on the left side of his stomach on the order of Rojin Mandal. The injured was being treated in the hospital of Raj Mahal but the doctor referred him to Maldah Hospital where he died. Information was given to the officer in charge on which he put his signature, Ext. 3. At the place of occurrence there were plastic bags containing mango and a towel which were of Bibhuti Mandal. When he reached the place of occurrence, he saw Vijay, P.W. 1, at the place of occurrence. Earlier also a case of snatching necklace was registered against the accused persons. Thus it appears that soon after the occurrence the deceased disclosed the name of the Appellants which corroborates the evidence of P.W. 1.

P.W. 2 is a reporter of a news paper. He has stated in his evidence that on 5.6.1980 injured Baldeo Prasad Mandal had given his fardbeysn in the hospital in his presence. He has testified the fardbeyan and has proved the fardbeyan, Ext. 1. He has stated in his evidence that the deceased was wearing Ganjee. On the left side of the Ganjee there was a hole and there was blood stain. The said Ganjee was seized by the police who prepared a seizure list on which he put his signature, Ext. 2. The police also seized plastic bag and a towel and prepared seizure list. He put his signature on the seizure list, Ext. 2/1.

The doctor, who held postmortem over the dead body has been examined as P.W. 7. The doctor has stated in his evidence that he held postmortem over the dead body on 18th June and found healed up injury over the left side of the abdomen. On dissection he found sign of inflammation around the wound. On further dissection spleen was found ruptured. Blood was also found in the parietonial cavity. The doctor has opined that death was due to the effect of the injuries found on the person of the deceased. Injuries were ante mortem and homicidal in nature.

It is thus manifest from the discussion of evidence of the witnesses that P.W. 1 is the only eye witness. He has supported the prosecution case on all material points. However, he stated that he could not identify Appellant Rojin Mandal. In cross-examination the witness stated that he saw the occurrence from a distance of 4-5 steps and it was moonlit night. In cross-examination nothing cogent could be elicited to discredit his testimony. Thus I find that the evidence of P.W. 1 is wholly trustworthy. Moreover, P.W. 5 has stated that when he reached the place of occurrence he found his father in injured condition who disclosed the name of the assailant Bibhuti Mandal who gave dagger blow on the left side of abdomen on the order of Rojin Mandal. P.W. 1 was present there from before. Therefore, the evidence of P.W. 1, who is an independent witness, is corroborated by P.W. 5. In such a situation the contention of learned Counsel for the Appellants, in my view, has no leg to stand.

Learned Counsel for the Appellants next contended that conviction of the Appellant Rojin Mandal is bad in law as there is no eye witness to the occurrence and the First Information Report cannot be treated as dying declaration as the injured died after 12 days of the occurrence. P.W. 1 has not claimed to identify Rojin Mandal who is said to have given order to assault. It is true that the injured-informant died after 12 days of the occurrence but a person expecting his death to take place shortly would not tell a lie and implicate innocent person. Section 32(1) of the Evidence Act is relevant for the purpose which reads as follows:

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.-

''....

''....

(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person''s death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

It is evident from the aforesaid provision that when the statement is made by a person as to cause of his death, whether the person who made it was or was not, at the time when it was made, under expectation of death, is relevant. There is nothing on the record to show that the statement of the deceased suffers from any falsehood. The mere fact that he died after twelve days in my view would not lose its value. In the case of Najjam Faraghi @ Nijjam Faruqui Vs. State of West Bengal, the Apex Court has held that statement would not lose its value on the ground that the person lived longer time than expected after giving statement. Therefore, in my view the contention of learned Counsel has got no substance and the First Information Report can safely be treated as dying declaration. Moreover, in the instant case P.W. 2 has stated in his evidence that he was present at the time of recording fardbeyan of the deceased. He also put signature on the fardbeyan as witness and has given details of the fardbeyan. There is nothing on the record to show that injured was not in a fit condition to give his statement. In the fardbeyan it has categorically been stated that on the order given by Appellant Rojin Mandal, Appellant Bibhuti Mandal gave dagger blow on the left of abdomen. The Doctor, P.W. 7 also found injury on the left side of abdomen. Therefore, the said dying declaration is also corroborated by medical evidence. More-over, P.W. 5 stated that the injured disclosed the name of Appellant Rojin Mandal soon after the occurrence and stated that on his order Appellant Bibhuti Mandal gave dagger blow on the left side of abdomen. In similar situation the Apex Court in the case of Paras Yadav and others Vs. The State of Bihar, has held that evidence of prosecution witnesses establishing that the deceased was in conscious condition while making statement, omission on the part of Investigating Officer to record regular dying declaration of the deceased is immaterial. Moreover, dying declaration was corroborated by medical evidence and as such Appellant is liable for conviction for the offence of murder. Thus on consideration I find that conviction of Appellant Rojin Mandal cannot be held to be bad in law.

Learned Counsel for the Appellants next contended that the Investigating Officer has not been examined and as such case of defence has been prejudiced. However, he could not be able to show as to how the defence case has been prejudiced. During examination of witnesses nothing was put to them to contradict their evidence from the statement made before the police on material point. Moreover, learned Counsel for the Appellants did not dispute the place of occurrence during course of argument and as such I am of the view that the contention of learned Counsel for the Appellants has got no substance.

Learned Counsel for the Appellants lastly pointed out that Appellant Rojin Mandal was juvenile at the time of occurrence and as such his conviction is bad in law. The occurrence took place on 4.6.1980. judgment was delivered on 18.4.1987. The age of Appellant Rojin Mandal was assessed by the court as 22 years. Thus it is obvious that he was below 16 years of age at the time of occurrence. Learned Counsel for the State could not dispute the said fact, however, stated that now the Appellant has attained the age of majority. It is evident that no such plea was taken before the trial court but not taking such plea, in my view, would not frustrate the object of Juvenile Justice Act. In such a situation normally enquiry u/s 32 of the Juvenile Justice Act is necessary but considering the fact that the occurrence took place in 1980 i.e. about 20 years ago, in such a situation remitting the case to the trial court for recording finding on the point of age, in my view, would delay the disposal of appeal and would not serve any useful purpose specially when the court has assessed the age of Appellant Rojin Mandal and on calculation it becomes evident that at the time of occurrence he was juvenile and the said fact is not being disputed by the learned Counsel for the State. Thus I am of the view that object of the Act shall be achieved if the conviction of the Appellant is upheld and sentence of the Appellant is set aside. In the case of Bhola Bhagat Vs. State of Bihar, the Apex Court in similar situation upheld the conviction and set aside the sentence. Thus, conviction of Appellant Rojin Mandal is upheld for the reasons stated above and his sentence is set aside.

Thus, on consideration as discussed above, the appeal of Appellant Rojin Mandal is dismissed with modification as indicated above. The appeal of Appellant Bibhuti Mandal is dismissed. He is directed to surrender to serve the remaining period of sentence. Similarly, Appellant Rojin Mandal is discharged from the liability of the bail bonds

S.N. Pathak, J.

I agree.