Panchdeo Singh vs The State of Bihar

Prasad, J.—The sole appellant in Cr. Appeal No. 64 of 1989(R) is Panchdeo Singh. Dun Bahadur Singh is the lone appellant in Cr. Appeal No. 65 of 1989(R). By the common judgment and order dated 23.12.1988 in S.T. No. 297 of 1981, passed by Sri. S.K. Mishra, the then Additional Sessions Judge, Dhanbad, they have been convicted u/s 302 read with section 149 of the Indian Penal Code on the charge of constructive liability for committing the murder of Shram Singh, and sentenced to rigorous imprisonment for life. They have been further convicted u/s 324 read with section 149 of the Indian Penal Code and section 148 of the Indian Penal Code and sentenced to rigorous imprisonment for three years, on each count. However, all the sentence have been directed to run concurrently. Both the appeals are being disposed of by this common judgment.

It may be stated here that the sole appellant (Sakaldeo Singh) in Cr. Appeal No. 63 of 1989(R) and co-appellant (Binod Kumar Singh) in Cr. Appeal No. 64 of 1989(R) are dead and their appeals have abated. 2. Briefly stated, the prosecution case, as made out in the first information report (which has not been brought on record) is as under:

On 20.12.1980, around 8 am., the informant Ramsumer Singh (P.W.8), in the company of Sriram Singh (the deceased) was going to Modidih Colliery Office on some election work and when on way they arrived on the road, at a distance of about 50 yards from the Modidih Director''s Technical Bungalow, the informant spotted the appellants, co-accused Sakaldeo Singh, Binod Kumar Singh (who died during the pendency of their appeals) and Nagendra Singh (who died during the trial) standing with their Car No. BHW 98 stationed on the West of the road, and Sakaldeo Singh hurled a bomb on Sriram Singh (the deceased), which hit in his abdoment, and thereafter Nagendra Singh and Dun Bahadur Singh threw bombs, causing injuries to the deceased and the informant too sustained wounds. On alarm, the witnesses arrived and the culprits fled away in the parked car towards Loyabad. The informant Bhagwan Singh and other witnesses carried Sriram Singh to Loyabad Central Hospital, where the fard-beyan of Ramsumer Singh (P.W.8) was recorded by the police officer, attached to Jogta Police Station, on 20.12.1980 at 10.30 a.m. The motive behind the occurrence is alleged to be the previous enmity. On its basis, the formal first information report (Exhibit 2) was drawn up, the investigation was commenced, during investigation, the injured (Sriram Singh) succumbed to the wounds on the next day of the occurrence, around 10.30 a.m., at Sadar Hospital, Dhanbad, and after completion of the investigation, charge-sheet was laid in court against the appellants and other accused in the case.

The main defence is of innocence and false implication. In their statements, recorded u/s 313 of the Criminal Procedure Code, the appellants denied their involvement in the occurrence.

At the trial, the prosecution examined as many as 14 witnesses in support of its case. Out of them P.W. 1 (Dhaneshwar Rai) is a formal witness, whereas P.W.9 (Munna Singh), the seizure list witness, has turned hostile. P.W.11 (S.M. Safruddin) is the other seizure list witness P.W.3 (Indramani Yadav) is an injured. The other P.Ws., namely, P.W. 4 (Chhotan Dhobi), P.W.5 (Prabhu Gope), P.W. 6 (Surat Gope), P.W.7 (Surajbali Gope), P.W.8 (Ramsumer Singh), the informant, P.W.10 (Bhagwan Singh), brother of the deceased (Sriram Singh) and P.W.13 (Nanhe Singh) have been declared hostile by the prosecution. P.W.2 is Dr. S.K. Singh, who held autopsy on the dead body of Sriram Singh. P.W.12 (Sri. S.M.A. Imam), the then Judicial Magistrate at Dhanbad, had recorded the dying declaration (Exhibit 5) of injured (Sriram Singh) in the hospital. P.W.14 (Sri Devendra Prasad), another Judicial Magistrate, had held test identification parade of non-first information report named co-accused (Bhuneshwar Singh), who was acquitted by the trial court.

The appellants did not adduce any evidence in defence. Two witnesses were examined on behalf of co-accused (Bhuneshwar Singh since acquitted) who are: D.Ws.1 (Bhup Narayan Singh) and 2 (Prem Sagar Singh). Their evidence has no relevance in the instant appeals.

FIR named accused, Binod Kumar Singh, Dun Bahadur Singh, Sakaldeo Singh, Panchdeo Singh, and non-FIR named accused Bhuneshwar Singh and Ram Singh alias Bishwanath Singh, were put on trial.

On consideration of the evidence on record and mainly relying on the dying declaration (Exhibit), recorded by the Judicial Magistrate (P.W.12), as well as the medical evidence, the trial court found the appellants, co-accused Sakaldeo Singh and Bindo Kumar Singh, guilty of the offences under sections 302 read with 149, 324 read with 149 and 148 of the Indian Penal Code, and convicted and sentenced them, as stated above. The trial court acquitted the non-FIR named accused, Bhuneshwar Singh and Ram Singh alias Bishwanath Singh, of the charges.

The point which falls for consideration is: whether the prosecution has been able to prove the offences/charges against the appellants beyond shadow of all reasonable doubt.

At the first instance, it has to be considered whether the death of Sriram Singh was homicidal. The medical evidence establishes beyond doubt that he met with violent death. P.W. 2 (Dr. S.K. Singh) has stated that on 21.12.1980 at 4.30 p.m. he held post-mortem examination on the dead body of Sriram Singh and found the following ante-mortem wounds on his person:

"(1). One stitched wound 11" long with fifteen stitches in the right lumber and hypochondrium with one drainage tube.

(2). Lacerated wound 1-1/2" x 1/4" on right infra axillary region.

(3). Multiple abrasions of different sizes in an area of 12" x 10" over front of the thorax and adjoining abdominal regions.

(4). Multiple abrasions over an area of 6" x 3" over right infra axillary region.

(5). Multiple small abrasions in an area 15" x 4" over left leg below knee.

(6). Lacerated wound 1" x 1/2" over left great toe.

(7). Multiple circular abrasions blackish in colour in an area of 12" x 2" over fright leg.

(8). Multiple circular abrasions blackish in colour over 1 x 1/2" in an area over right thigh.

(9) Multiple linear blackish abrasions over the back of the trunk in an area of 7" x 4".

(10). Blackish abrasions, small in sizes over the front of the neck and adjoining frontal area of the thorax in an area of 11" x 3".

According to him, the cause of death was due to shock and haemorrhage, as a result of the above injuries, which were sufficient in ordinary course to cause the death, and the time elapsed since death was about six hours of the post-mortem examination. In other words, the deceased had died around 10.30 a.m. on 21.12.1980. Exhibit 3 is the post-mortem report in his pen. It is true that P.W.2 has stated in his cross-examination that he did not find any burn injury on the person or splinter inside the body of the deceased. In the post-mortem report, Exhibit 3, it is specifically mentioned that the injuries were caused by blast. There were blackish abrasions on the person of the deceased, which, in the opinion of the doctor, were not due to change in colour of the injuries. Thus, there can be no doubt that the deceased sustained and died of bomb injuries.

Besides, there is ocular testimony of the informant Ramsumer Singh (P.W.8) that there were bomb-explosions, in which he himself sustained wound and the deceased suffered wound in his abdomen. P.W.5 (Prabhu Gope) has deposed that there was bomb explosion and when later he went to the spot, he found that Shram Singh was lying injured. P.W.4 too has spoken about the bomb explosion, which took place near the Director''s Technical Bungalow. P.W.10 (Bhagwan Singh) has deposed that there was explosion of bomb, in which the informant and the deceased were injured. It is not the defence version that the deceased had suffered the wounds in any other manner. Thus, on the consideration of the medical evidence and the ocular testimony, I find that it is established beyond doubt that the death of the deceased was homicidal, caused by bomb-explosions.

The crucial point which now arises for consideration is : whether the appellants were involved/participated in the occurrence culminating in the death of Sriram Singh. P.W.3 (Indramani Yadav), the injured, has simply stated that while on way after he met the deceased near Pandedih, there was bomb explosion and he suffered wound in the nose. He has further deposed that he could not identify any culprit. P.W.8 (Ramsumer Singh), the informant, has testified to the effect in his chief-examination that when the bombs exploded, there was thick smoke and he could not identify the miscreants and he was carried to the hospital for treatment. He has been declared hostile by the prosecution. He has even denied to have given the fard-beyan before the police officer. P.Ws. 4, 5, 6, 7, 10 and 13 have not supported the prosecution case on the point of participation of the appellants/F.I.R. named accused in the occurrence and they too have been declared hostile by the prosecution. So there is no ocular testimony on the involvement/participation of the appellants in the occurrence.

The dying declaration of the deceased, recorded by P.W.12 (Sri. S.M.A. Imam, the then Judicial Magistrate, Dhanbad (Exhibit 5) is the only evidence, on which the conviction of the appellants has been based.

At this juncture, it may be stated that section 32(1) of the Evidence Act is an exception to the general rule that the hear-say evidence is not admissible in evidence and unless the evidence is proved (sic-?) by cross-examination, it is not credit-worthy. u/s 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances, which result in his death, in cases in which the cause of that person''s death comes into question, such statement, oral or in writing, made by the deceased to the witnesses is a relevant fact and is admissible in evidence. Dying-declaration falls in that category provided it has been made by the deceased while in a fit mental condition. A dying-declaration enjoys almost a sacrosanct status and for the reason that the shadow of impending death is by itself a guarantee of the truth of the statement made by the deceased because a person on the verge of death is most unlikely to make any untrue statement. It is well settled that if on careful scrutiny, the dying declaration is founded to be true, free from any embellishment or doubt and inspires confidence, a conviction can be based on such a dying-declaration even without looking for any corroboration (Ref: Kundula Bala Subrahmanyam and Another Vs. State of Andhra Pradesh, and State of U.P. Vs. Ameer Ali, .

Keeping these principles in mind, one may proceed to discuss the evidence on the dying-declaration (exhibit 5), the basis of the conviction in the instant case.

Mr. P.S. Dayal, learned Sr. counsel for the appellants, has assailed the reliability of the dying-declaration, mainly on the grounds that the Judicial Magistrate (P.W.12) did not record the statement in question and answer form; he did not record his satisfaction that the deceased was in a fit state of mind to make the statement, nor he appended his certificate that it has been read over to the deceased; that the doctor, who gave the certificate thereon that the deceased was in a fit condition to make his statement, has not been examined nor such certificate of the doctor has been proved and marked as Exhibit and that the treating/attending physician or the surgeon has not been examined to show that in fact the deceased was in a fit condition to make the statement. He has further urged that there is no thumb impression of the deceased on the statement and the signature purporting to be that of the deceased is much below the certificate of the doctor on the statement, which renders the document as suspect. He has placed reliance on the decision of the Apex Court in Kanchy Ramchander vs. State of Andhra Pradesh (1995 (4) SCC 119) in support of his contentions.

On the other hand, learned APP appearing for the respondent-State refuted the contentions made by the learned counsel for the appellants and has urged that in the circumstances of the case, the trial court for good reasons has rightly acted on the dying-declaration.

P.W.12 (Sri. S.M.A. Imam) the then Judicial Magistrate, has testified to the effect in his chief-examination that on 20.12.1980, on the order of the Chief Judicial Magistrate, Dhanbad, at 11.20 a.m. he recorded the dying-declaration of Sriram Singh, the deceased, at Sadar Hospital, Dhanbad, in presence of Dr. Raman Shankar Prasad, which was read over to him and on finding it to be correct, he appended his signature to it. He has proved the dying-declaration (exhibit 5) recorded by him. The xerox copy of the dying-declaration is also on the record. He has clarified in his cross-examination that the police officer had conducted him to the injured in the hospital and the doctor had introduced him to the injured and at first, he had enquired about the name, parentage and the address from the injured, which part was not recorded in question-answer form, but he had recorded that part of his statement in answer form. He has denied that he had recorded the name, parentage, and the address of the injured at the instance of some other person. He has stated that his record shows that this part of the statement was recorded on the answers given by the injured. He has further clarified that when the injured gave his name, parentage and full address, he was satisfied that the injured was in fit state of mind to give the statement regarding the occurrence and he proceeded to further record his statement, which is in question-answer form. The examination of the dying-declaration shows that simple questions were put to him which were clearly answered. The main gist of his statement is that Sakaldeo Singh (who is now dead) threw a bomb from the front, hitting him in his abdomen, on Modidih Road, while Nagendra Singh (who died during the trial) had struck him with a bomb thrown from behind, while Dun Bahadur Singh (appellant), Binod Singh (now dead) and Panchdeo Singh (appellant) ran with bombs and he fled to some distance, but fell down, when another bomb hit him on the back. He has further stated that the occurrence took place while he was going to Modidih Union Office. At the time of the dying-declaration, the Judicial Magistrate (P.W.12) has recorded that the injured had stated that the occurrence had taken place on 20.12.1980 at 8 am. The injured gave the clear and categorical statement depicting the occurrence, the place of incident, the manner of occurrence, the circumstances in which he suffered the wounds and he has correctly named the culprits, including the appellants. In this case, the medical evidence corroborates the dying-declaration of Sriram Singh. It is not necessary that the dying declaration should be recorded in the question-answer form (Ref: the three Judges decision in Ameer Ali''s case (supra). It has been noticed above that the dying-declaration (exhibit 5) regarding the manner of occurrence and involvement/participation of the appellants in it has been recorded in question-answer form. The mere fact that the Judicial Magistrate (P.W.12) did not record the name, parentage and the date and time of occurrence in question-answer form does not reduce the probative value of the dying declaration.

The Judicial Magistrate, who recorded the statement of the deceased, has clearly stated that the injured was in a fit condition to give his statement and the opinion of the doctor to that effect was obtained on the dying-declaration, which reads that the injured was fully conscious to make his dying-declaration, which was recorded in his presence by the Judicial Magistrate. The defence has not questioned the doctor (P.W.2), who held autopsy whether the deceased could not have been able to make any statement after he had sustained the wounds and before his death. It is significant that the deceased died almost a day after recording of the dying-declaration. The mere fact that the concerned doctor who gave the certificate of fitness was not examined, does not detract the testimony of the Judicial Magistrate. The contention of the learned counsel for the appellants that the victim was not in a fit condition to make the dying-declaration is without merit.

In the circumstances of the case, the omission on the part of the Judicial Magistrate to question the deceased regarding his state of mind would not be a ground to reject the dying-declaration (Ref: 1995 (Suppl.) 4 SCC 211: Bolem Bhaskara Rao and another vs. State of Andhra Pradesh).

There is sworn testimony of the Judicial Magistrate (P.W.12) that he had correctly recorded the dying-declaration and the injured, when it was read over to him, after finding it to be correct, had put his signature on it. The signature of the injured is below the statement. He has asserted in the cross-examination that the injured had put his signature on the statement. The mere fact that the Judicial Magistrate omitted to give the certificate on the document (Exhibit 5) that the statement had been read over to the injured, who on finding it to be correct had put his signature on it, would not render the dying-declaration as suspect. The fact remains that the signature of the injured is on the statement.

When the signature of the maker of the statement is on the document, absence of his thumb impression is of no consequence. There is no material on record to suggest that the Judicial Magistrate had motive to record a false declaration. The dying-declaration (exhibit 5) appears to be quite natural and voluntary. The Judicial Magistrate has denied the defence suggestion that he did not correctly record the statement of the injured. There is hardly any reason to doubt that it was not properly recorded by him.

Reliance placed by the learned counsel for the appellants on the decision in Kanchy''s case (supra) has no application to the facts and circumstances of the present case. In that case, the dying-declaration of the victim had been recorded by the Magistrate, but the doctor had not been examined to prove that she was in fit state of mind to make the statement, and there was statement of the mother of the victim that the condition of the patient was not good and that she was not in a fit condition which created a doubt as to whether the patient was actually in proper mental condition to make consciously a truthful statement and in such circumstances, it was held that it was un-safe to rely on the dying-declaration. In the instant case, there is no evidence that the victim was not in a good and fit condition to make the statement.

In view of the discussions made above, I find that the dying-declaration (exhibit 5) suffers from no infirmity and the trial court committed no error in placing reliance on it.

It was next contended by the learned counsel for the appellants that the Investigating Officer or the doctor, who treated the injured persons, have not been examined in the present case and this materially affects the prosecution case. The identity of the place of occurrence has been established by the ocular testimony as well as the dying-declaration (exhibit 5). It is not the defence version that the occurrence had taken place elsewhere. Learned counsel for the appellants has failed to demonstrate that any serious prejudice has been caused to the defence due to non-examination of the Investigating Officer. Thus non-examination of the Investigating Officer is not fatal to the prosecution case.

P.Ws. 3 and 8 have deposed that they have suffered the bomb injuries. The other P.Ws. have supported this fact. There is ocular testimony of the P.Ws. that the deceased had also sustained bomb injuries, which is corroborated by the medical evidence, as earlier discussed. There is no reason to disbelieve the prosecution case that P.Ws.3, 8 and the deceased had suffered bomb wounds in the occurrence. In the circumstances of the case, non-examination of the treating doctor does not materially and adversely affect the prosecution case.

In view of the discussions, made above and taking the dying-declaration (exhibit 5) into consideration, I find and hold that the prosecution has been able to prove the offences/charges against the appellants beyond shadow of all reasonable doubt. In the result, there is no merit in these appeals and the same are accordingly dismissed.

The order of conviction and sentences passed against the appellants by the court below is affirmed. The appellants are on bail. They are directed to surrender to their bail bond in the court below forthwith to serve out the remaining part of their sentences as imposed on them by the trial court, failing which the court below shall take all steps to secure their attendance.