Deo Saran Upadhya (In Jail) vs State of U.P.

The Appellant was convicted u/s 302/34, I.P.C. and was sentenced to life imprisonment by a judgment and order dated 30.10.81 recorded by the Sessions Judge, Varanasi, in S.T. No. 308 of 1981. After preferring the appeal, he was directed to be released on bail.

An F.I.R. was lodged by one Smt. Indrawati. wife of Chandra Bhushan Upadhya of Kamalpur, P.S. Thanapur, district Chandauli on 7.5.1981 at 2.35 p.m. for an incident that had taken place on 4.5.1981 at 9 a.m. in village Kamalpur. In the F.I.R., two brOrs. Prem Nath Upadhya and Deo Sharan Upadhya were named as assailants. This Prem Nath died prior to the aforementioned sessions trial and only Deo Sharan Upadhya (present Appellant) stood trial. It was stated in the F.I.R. that the two named accused persons were of the same family to which Chandra Bhushan Upadhya belonged. These two persons came to the house of the complainant with ballam and gandasa and started abusing and threatening. Prem Nath assaulted Chandra Bhushan with ballam and Deo Sharan by gandasa. On hue and cry, people of the locality collected. Chandra Bhushan suffered serious injuries. He was taken to a Government hospital at Kabirchaura by the complainant. She was alone in her house with young children. Her husband was seriously injured and as such, she could not come to the police station earlier to 7.5.1981.

A dying declaration was made by Chandra Bhushan Upadhya at the hospital before an Executive Magistrate on 4.5.1981 itself in which he had named both the accused persons and had attributed specific roles to them indicating the weapons used. This dying declaration was proved in the Court below as Ext. Ka-5.

During investigation, police seized blood-stained and plain earth. Chandra Bhushan died in the hospital and an inquest was made followed by a post-mortem examination. After examining witnesses and going through the formalities, charge-sheet was submitted.

The prosecution had examined 9 witnesses during the trial. The accused was examined u/s 313, Code of Criminal Procedure but no defence witness was cited although the accused desired to lead defence evidence. The records of the Court below indicate that the accused declined to produce any oral evidence but the documents filed by him were admitted.

The trial Judge had placed reliance on the eye-witness account as given by Indrawati as also on the dying declaration and he gave good reasons for accepting them. A point was raised before us that the F.I.R. was unduly delayed. It is true that the occurrence took place on 4.5.1981 and the information was given on 7.5.1981. An explanation is, however, there by Indrawati in the F.I.R. itself that she, being the lone survivor in the family barring the young children, kept busy in the treatment of her husband and could not go to the police station earlier. This explanation appears to be acceptable as the near ones of a seriously injured person would first try to give him the first medical help and only thereafter would take recourse to law. The delay in the F.I.R. without any proper explanation for the delay is looked with suspicion for the reason that with delay. concoction and deliberations are expected. In the instant case, however, that may be ruled out because immediately after the incident, the injured was rushed to the hospital and on the same day, long before the drawing up of the F.I.R., he made a statement naming the accused person and indicating the manner of assault.

As already stated, this dying declaration has been proved as Ext. Ka-5 and P.W. 7, U.S. Ansari, is the Executive Magistrate who had recorded this dying declaration. He had satisfied himself that the deponent was mentally fit to make a statement and he had also proved the certificate of the doctor recorded on the sheet of dying declaration itself that the deponent was able to make statement. The statement was recorded in question and answer form and the questions were not suggestive or leading. It is true that the relatives of the injured were near him when the Magistrate had gone but that may not, by itself, indicate tutoring as a very limited time had passed between the incident and the recording of the dying declaration. It is again true that Chandra Bhushan did not indicate specifically as to which accused had held what weapon, but he had named both the accused persons and both types of weapons used by them. A dying declaration may not be in the nature of a deposition in Court to give every minute detail, but normally a man makes a dying declaration when he is under extreme pain and agony. The dying declaration names the accused person and the weapons and also gives the time of the incident as well as the place thereof. A criticism was made on the acceptance of the dying declaration as the deponent had attributed certain motive to these two assailants who were his nephews. It was stated that the deponent used to get the puja of Harshu Brahma Baba done and Prem Nath and Deo Sharan also wanted to participate to which he did not agree. The Learned Counsel read out the statement of Indrawati as she had accepted that Chandra Bhushan never performed the puja of Harshu Brahma Baba. The statements are in Hindi. In the dying declaration the term used is �Puja karata tha� (meaning, used to get the puja performed). In the statement of Indrawati, the term used is �Puja nahin karta tha� (meaning, did not perform the puja himself). The connotations of �Karta tha� and �Karata tha� are different and as such, it may not be such a contradiction which would take away the effect of the dying declaration. Moreover, Indrawati might not be in the know as to why the assailants bore the grudge against him. Moreover, motive is not that relevant in a case where positive evidence of participation of the assailants is there, as it is in the case on circumstantial evidence.

Dr. M.S. Sharma (P.W. 3) had examined Chandra Bhushan in the hospital. His condition was very low, but he was still conscious. This doctor had stated that the Magistrate had recorded the dying declaration in his presence and he had certified that the deponent had stated and the Magistrate had recorded the dying declaration in his presence and he had certified that the deponent was mentally fit to make such a statement. Thus, we get a corroboration of the dying declaration at least on the point of the ability of Chandra Bhushan to make such a statement. There is no reason, therefore, to doubt a dying declaration which was recorded according to law while the deponent was conscious and fit to make a statement and when the statement was made without delay.

Still then, we may look to the other evidence to see if the dying declaration has been corroborated. On this point, prosecution examined P.W. 1, Maqbool Alam and P.W. 2 Indrawati. For Maqbool, it was stated during arguments that he was not a witness normally expected at the spot and, admittedly, he was inimical to the accused persons and it was also suggested that he was interested in the prosecution. The incident took place in village Kamalpur. Maqbool was in Kamalpur bazar and he reached the spot only on the hue and cry and he claimed to have seen the incident, as also the weapons in the hands of the accused persons. Mere enmity or interestedness may not be a ground by themselves to discard the statements of a witness. The Courts are, however, to scrutinise the statements of such a witness very thoroughly before acceptance. In our view, when such an incident takes place, normally, there would be a hue and cry which would attract people from the neighbouring areas. Presence of Maqbool in the bazar may not be a chance affair and, accordingly, his reaching the spot on hue and cry was also natural. The description of the incident which he gives tallies with the prosecution version in broad particulars and his conduct is also relevant. He did not dare to intervene physically as the two assailants were armed but he tried to intervene by oral objections.

The statement of Indrawati is also relevant. She was very much present when her husband was assaulted by Prem Nath and Deo Sharan Upadhyaya and her conduct is also most natural as she had first taken her husband to the hospital and only thereafter had gone to lodge a report. She had stated that her husband�s statement was recorded by the doctor and police. This may not be taken as something contradicting the claim of the Magistrate that he had recorded the statement. She also stated that her husband did not loose consciousness. Rather, he remained conscious till his death.

Dr. Madhu Sudan Sharma who had examined Chandra Bhushan at the first instance opined that the injuries were possible from ballam and a sharp cutting weapon. It is true that two injuries as observed by the doctor were not possible from these weapons. These injuries were a crushed injury on the left forearm and an abraded contusion on the right shoulder. Although he had stated that injuries were not possible from fall, it is quite normal that in the course of assault which the injured must have tried to prevent, there might have been some contact with the handles of the weapons. This doctor clearly denied the suggestion that the injuries were caused at about 4 or 5 a.m. and not at 9 a.m. The doctor who held post-mortem examination had opined that the death was caused due to shock and haemorrhage as a result of the injuries and the injuries were sufficient to cause death in the ordinary course of nature. The abrasions, according to the doctor, were possible from fiction, as we had discussed earlier regarding the contusions and crushed injuries. From what has been discussed above, we are of the view that the witnesses on the point of incident and the dying declaration of Chandra Bhushan corroborated each other on the point of involvement of Deo Sharan and of his using his weapon and on his sharing a common intention with Prem Nath to cause the death of Chandra Bhushan. The conviction and sentence u/s 302/34, I.P.C. was thus properly made and we uphold the same.

The appeal stands dismissed. The C.J.M. concerned shall issue warrant of arrest and other necessary processes to compel the attendance of the accused before him for undergoing the sentence. The bail bonds of the accused stands cancelled.