Bindi Pasi vs The State of Bihar

Ram Nandan Prasad and Loknath Prasad, JJ.—Both these appeals have been filed against the judgment and order of conviction and sentence dated 21.3.1990 passed by Sessions Judge, Saharsa in Sessions Trial No. 85/86. In both the appeals the Appellants have been convicted for the offence u/s 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life.

The case of the prosecution is that on 20.11.1985 at about 9.25 A.M. the informant Jai Prakash Sinha (P.W. 1) gave his Fardbeyan (Ext.-1) in the hospital, Saharsa stating, inter alia, therein that while he along with the deceased Amit Kumar Mitra was standing near the gate of Ramesh Jha. Mahila College, Saharsa after witnessing picture, the Appellants came and called Amit Kumar Mitra saying that they had some work with him. Amit Kumar Mitra and the Appellants started talking among themselves at some distance. The deceased Amit Kumar Mitra told the informant to come after changing his dress as they had to get photographed and they proceeded towards Sanjay Park. When the informant returned back after changing his dress, he did not find Amit Kumar Mitra and the Appellants. In the meantime, Manoj Kumar Verma, P.W. 4 met him and then they proceeded towards Sanjay Park in search of his friend Amit Kumar Mitra. He found the Appellant Arjun Rajak having dagger in his hand and Appellant Bindi Pasi running away towards west in the moonlit night. He also heard some groaning sound coming from near a tree. He went there and saw his friend Amit Kumar Mitra lying in a pool of binod and several injuries on his person. In me meantime Manoj Kumar Verma P.W. 4 also reached there. On enquiry Amit Kumar Mitra told that the Appellant Bindi Pasi caught hold of him and pressed his mouth and neck and the Appellant Arjun Rajak gave several dagger blows on his person. He and Manoj Kumar Verma took the injured Amit Kumar Mitra to the hospital on rikshaw. In the Fardbeyan it has been alleged that Bindi Pasi was inimical to Ashok Mitra, elder brother of Amit Kumar Mitra, due to which this occurrence took place.

On the aforesaid Fardbeyan, a formal F.I.R. (Ext.-7) was registered for the offence under Sections 307 and 324 of the Indian Penal Code and the investigation of the case was taken up. During the investigation, dying declaration (Ext.-2) of Amit Kumar Mitra was recorded by a Judicial Magistrate (P.W. 2) and after the death of Amit Kumar Mitra the case was converted into one u/s 302 of the Indian Penal Code. The Investigating Officer (P.W. 10) after completion of the investigation submitted charge-sheet for the offence u/s 302 of the Indian Penal Code against the Appellants. After submission of charge-sheet, cognizance was taken and the case was committed to the Court of sessions for trial.

The defence of the Appellants was that they are innocent and have been falsely implicated in this case. Their further defence was that the deceased Amit Kumar Mitra had some love affairs and illicit relation with one Munni Kumari of Naya Bazar within the Saharsa Town. On the day of occurrence, the deceased had gone to the house of Munni Kumari and he was caught in compromising position with her and her family members assaulted the deceased and threw bis dead body. Munni Kumari also out of shock set fire to her body on the same day. Subsequently, the family members of Munni Kumari and the deceased in collusion got the case instituted against the Appellants.

The prosecution in support of its case examined ten witnesses, out of whom P.W. 8, and P.W. 9 have been tendered. P.W. 10 is the investigating officer. P.W. 2 is a Judicial Magistrate, who recorded the dying declaration (Ext.-2). P.W. 3 is the doctor, who held post-mortem over the dead body. P.W. 5 is also a doctor, in whose presence the dying declaration was recorded and who made endorsement on the dying declaration. P.W. 4 and P.W. 7 are brothers of the deceased. They have deposed that the deceased disclosed the names of the Appellants as his assailants. P.W. 1 is the informant, who had given detailed narration of the incident. P.W. 4 is a witness in whose presence the deceased disclosed the name of the assailants on the spot. One Court witness Ashutosh Singh was also produced but neither the prosecution nor the defence put any question to him.

Similarly the defence has also examined six witnesses in support of its case, out of whom D.W. 1, D.W. 3 and D.W. 5 are formal witnesses. D.W. 2 had given description of the house of Munni Kumari, daughter of Rewati Raman. D.W. 4 deposed that he had seen the deceased going towards the Courtyard of Rewati Raman about 2 1/2 years ago without mentioning the date. D.W. 6 deposed that there was dispute between the family members of the deceased and the Appellant Arjun Rajak.

At the very outset, it is pertinent to mention herein that the occurrence had taken place on 20.11.1985 at about 6.00 p.m. in which the deceased was assaulted with the dagger, Subsequently, the deceased died on 21.11.1985 at about 4.20 a.m. The witnesses of the prosecution have also supported the fact that the deceased died at 4.20 a.m. on 21.11.1985 due to in-juries caused on his person. The doctor, who held post-mortem over the dead body also found ante-mortem injuries on the person of the deceased. In the Bed-Head Ticket (Ext.-14) it has been mentioned specifically that the injured died at about 4.20 a.m. on 21.11.85. Thus the factum of death is proved beyond all reasonable doubt, besides the death tias not been challenged by the defence.

Now the question arises for determination as to whether the prosecution has succeeded in proving its case against the Appellants. In this regard P.W. 1 the informant has given detailed narration of the incident. He has stated in his evidence that after witnessing picture'' when he reached near the gate of Ramesh Jha Mahila College, the Appellants Bindi Pasi and Arjun Rajak came there and called Amit Kumar Mitra saying that they had some work with him. They started talking at some distance and in the meanwhile his friend Amit Kumar Mitra asked the informant to come after changing his dress as they had to get snapped. He also said that they were going towards Sanjay Park. When the informant returned back after changing his dress, he did not find the deceased Amit Kumar Mitra '' and the Appellants. In the meantime, Manoj Kumar Verma P.W. 4 came there and they proceeded towards Sanjay Prak in search of his friend Amit Kumar Mitra. When they came near the P.W.D. Inspection Bungalow, he found the accused Arjun Rajak with a dagger in his hand and Bindi Pasi with clothes running away towards west in the moonlit night. He also heard some groaning sound coming from near a tree and then they proceeded towards the tree and found that Amit Kumar Mitra was lying in a pool of blood having several injuries on his person. In the meantime, Manoj Kumar Verma, P.W. 4 also came there ana r.i enquiry the deceased told that the app.'' snt Bindi Pasi caught hold of him and prised his neck and mouth and the Appellant Arjun Raja gave several dagger blows on his person. P.W. 1 also deposed that he and P.W. 4 took Amit Kumar Mitra to Sadar hospital, Saharsa and he sent P.W. 4 to inform his family members. In his deposition he also stated that Amit Kumar Mitra also disclosed the name of Appellants to his brothers and father. He also accompanied the Investigating officer to the place of occurrence where the Investigating Officer P.W. 10 seized woolen pullover and maflar from the place of occurrence and he also seized blood stained earth from the place of occurrence and prepared seizure list (Ext.-5). P.W. 4 supported the case of the prosecution and corroborated the evidence of P.W. 1 in his evidence. He has stated that on 20.11.1985 at about 6.15. p.m. he met Jai Prakash Sinha P.W. 1 near Kunwar Singh Chowk and thereafter they proceeded towards Sanjay Park in search of Amit Kumar Mitra. He saw two persons, one having dagger in his hand and the other having clothes in his hand running away in the moonlit night but he could not identify those persons. He further stated in his evidence that the deceased Amit Kumar Mitra disclosed the name ol the Appellant Bindi Pasi as having cought hold of him and having pressed his neck and mouth and Appellant Arjun Rajak having given several dagger blows on his person He had also seen pullover and maflar at the place ol occurrence. Both the witnesses were cross-examined at length but we do not find any infirmity to discredit their evidence.

Besides, the evidence of the aforesaid witnesses, there is also dying declaration (Ext.-2) on the record. The dying declaration was recorded by P.W. 2 in the hospital at about 10.10 p.m. Ext.-2 was endorsed by the doctor P.W. 5. The endorsement has been marked as Ext.-2/1. deceased himself put his signature on Ext. 2 and his signature has been marked as Ext. 2/2. In the dying declaration the deceased disclosed that the Appellant Bindi Pasi pressed his neck and mouth and the Appellant Arjun Rajak gave him several dagger blows on his person. P.W. 2 in his evidence has stated that the deceased was in fit mental condition to give his statement. This has been corroborated by the doctor P.W. 5. in vyhose presence the dying declaration was recorded. He has stated in his evidence that tfie deceased was in fit mental condition to give his statement. However, learned Counsel for the Appellants contended that the dying declaration cannot be relied upon and pointed out that undisputedly the Fardbeyan vyas recorded on 20.11.1985 at about 9.25 p.m. and the dying declaration was recorded at 10.10 p.m. on the same night. Learned Counsel also says that at the time Of recording Fardbeyan (Ext.-1) undisputedly the injured was not in a fit mental condition to give his statement and within such a short time i.e. after about 45 minutes he could not be in a position to give his statement and thus the dying declaration cannot the relied upon. In this regard P.W. 6 has deposed that at the time of recording the Fardbeyan (Ext.-1) the doctor said that the patient had been given injection and he would regain his senses after some time. This has been corroborated by P.W. 10 also in his evidence. P.W. 10 has stated that the doctor present on duty said that the injection has been given just now and after regaining his senses the injured will speak. Besides, the dying declaration (Ext.-2) is not the only material on the record, prior to recording the dying declaration the deceased disclosed the name of the Appellants as his assailants at the place of occurrence in presence of P.W. 1 and P.W. 4. They have deposed that in their presence the deceased disclosed that the Appellant Bindi Pasi pressed his neck and mouth and Appellant Arjun Rajak assaulted him with dagger. That apart, P.W. 6 and P.W. 7 the brothers of the deceased have deposed in the Court that prior to recording the Fardbeyan (Ext.-1) the deceased disclosed the name of the Appellants as his assailants and had stated that the Appellant Bindi Pasi pressed his neck and mouth and the Appellant Arjun Rajak gave dagger blows on his person. Thus, it is obvious from the evidence on the record that even prior to recording the Fardbeyan (Ext.-1) and dying declaration (Ext.-2) the deceased disclosed the name of the Appellants as his assailants. It is true that the dying declaration alone is not sufficient for passing the order of conviction in such circumstances but in the instant case the dying declaration is also corroborated by the evidence of the other prosecution witnesses as stated above. The evidence of the prosecution witnesses are consistent on the aforesaid point. The defence Counsel also could not be able to point out any discrepancies in their evidence to discredit their testimony. Thus, we are of the view that the submission of the Counsel for the Appellants cannot be accepted in the facts and circumstances of the case.

Learned Counsel for the Appellants further pointed out that the doctor P.W. 3, who held post-mortem over the dead body of the deceased had found injuries on vital pans such as liver and lungs and after receiving such injuries, a man cannot be in a fit mental condition to give his statement In this connection, it is pertinent, to mentim herein that in the instant case two doctors were examined i.e. P.W. 3, who held postmortem over the dead body and P.W. 5 in whose presence dying declaration vas recorded. They were cross-examined on behalf of the accused persons but there is nothing in their evidence to show that after'' receiving such injury the injured cannot be in a fit mental condition to give his statement. In case of State of Haryana Vs. Harpal Singh and Others, the deceased was shot at and he received injury on his chest and stomach. His dying declaration was recorded by the Sub-Inspector of Police in the Hospital and within 45 minutes of recording of dying declaration the injured died. The Apex Court in the aforesaid case held that the fact that the pulse was not palpable and blood pressure unrecordable and the patient was in a gasping condition would not necessarily show that the patient''s condition was such that no dying declaration could be recorded. In the instant case P.W. 1 and P.W. 4 have categorically-deposed that in their persence the injured disclosed the name of the Appellants as his assailants at the spot. P.W. 6 and P.W. 7 have also categorically stated in their evidence that the injured disclosed the name of the Appellants as his assailants in the hospital. Besides, there is no evidence on the record to show that at the time of recording dying declaration the condition of the injured was such a serious that he could not give his statement. On the other hand, there is evidence of the doctor P.W. 5 that the injured was in a fit mental condition to give his statement and the injured himself signed the dying declaration which has been marked as Ext.-2/2. In view of such evidence, in our opinion, the contention of the Appellants cannot be accepted.

Learned Counsel for the Appellants further submitted that there were injuries on the hand and thumb and thus the injured could not have signed his dying declaration. In this connection it is necessary to mention that P.W. 3 the doctor who held post-mortem over the dead body of the deceased had found injuries on the base of the thumb and not on the other portion of the thumb and thus in our view in such a condition it cannot be said that the injured could not put his signature.

So far stand of the defence is concerned that no occurrence in the manner as alleged by the prosecution has taken place and the injured was caught hold in the house of Rewati Raman Sinha in compromising condition with his daughter in Naya Bazar and was assaulted there and his dead body was thrown at the alleged place of occurrence, it is relevant to mention herein that both the Appellants have taken a defence that the deceased had some love affairs with Munni Kumari, the daughter of Rewati Raman Sinha but nothing cogent has been brought on the record even to suggest that there was any such affairs with the aforesaid Munni Kumari. The defence has also examined six witnesses but not even a single witness has stated with regard to the aforesaid defence that the deceased had any love affairs with the aforesaid Munni Kumari. The place of occurrence where Amit Kumar Mitra was found lying in the pool of blood is at a distance of half kilometre from the house of. Rewati Raman Sinha of Naya Bazar. Besides the claim of the defence that the dead body was thrown at the alleged place of occurrence also does not appeal to reason as Amit Kumar Mitra was found alive at the place of occurrence. It is true that the injured was found only wearing under-weer but at the same time it is pertinent to mention herein that woolen pullover having cut mark and blood stained was found at the place of occurrence. Besides the prosecution witnesses P.W. 1 and P.W. 4 have stated in their evidence that they had seen one of the Appellants, namely Bindi Pasi running away with clothes. In such a situation, we are of the view that there is no evidence on the record even to suggest that the deceased had any love affairs with Munni Kumari and no occurrence took place as alleged by the prosecution.

Learned Counsel for the Appellants further contended that enmity has been admitted by the prosecution and the Appellants have falsely been implicated in thte case out of aforesaid enmity. In this regard it is pertinent to mention herein that enmity cuts both way. A person may be implicated out of enmity and a person may commit offence due to enmity. In the instant case, nothing has been brought on record that the Appellants were falsely implicated out of enmity and hence we find no substance in the submission.

On consideration of the entire facts and circumstances as stated above, we are of the view that the prosecution has succeeded in establishing its case beyond all reasonable doubts. Accordingly, this appeal is dismissed. The judgment and order of conviction is hereby confirmed. The bail bond of Bindi Pasi is also hereby cancelled and the trial Court is directed to take all steps to apprehend Bindi Pasi to serve the remaining period of sentence.