Rajesh vs State of U.P.

Rakesh Tiwari, J.—Heard Ms. Gajala Banu Qudari, Amicus Curiae, on behalf of the appellants in both the criminal appeals, Sri S. Ali Murtuza, learned A.G.A. for the State, and perused the record. This criminal appeal challenges the judgment and order dated 22.7.2003 passed by Additional Sessions Judge, Fast Track Court No. 1, Budaun in Session Trial No. 08 of 2001: State v. Rajendra, convicting the appellants u/s 302 I.P.C. for life imprisonment with a fine of Rs. 5000/- each and in case of default of payment of fine, further conviction of 2 years.

The prosecution story in brief is that a written report was submitted by the complainant-Mahipal son of Bhupal Dhimar, R/O Village-Vari Kheda, P.S.-Ushait, District-Badaun, alleging therein that Rajendra son of Bhumiraj Dhimar and Rajesh son of Omkar Dhimar, R/O. Village-Mamoorganj, P.S.-Kadar Chok, District-Badaun, at about 8.00 p.m. in the night of 29.9.2000 came to his house and took him in the forest near the village-Vachi at the agricultural field of Sewa Ram adjacent to Chakroad and started saying that "SALE TERA DIMAG BAHUT KHARAB HAI". On being replied that what he had said to them for harbouring enmity, both the accused persons caught hold of him, started beating and injured, him with knife blows. On his cry, Amar Singh son of Hira Lal and Suresh son of Girdi, reached the spot who knew the accused persons and on seeing them, the accused ran away. It was further averred in the written report that due to fear of accused persons and non availability of any conveyance the injured complainant could not come to the police station in the night, but came on the next day on a bullock-cart in injured condition for lodging the FIR.

After he submitted the written report, chick report was prepared in Case Crime No. 145 of 2000, u/s 307 /504 IPC was registered in police station-Ushait, Sub.-Dataganj, District-Badaun on 30.9.2000 at about 10.00 a.m. The injured Mahipal was sent for medical treatment by the police. Dr. A.K. Verma medically examined injured Mahipal on 30.9.200 at about 12.05 a.m. who found following injuries on the body of complainant-Mahipal:

Multiple incised wound over front of neck in area of 12 cm x 10 cm size varying from 6 cm x 1 cm to 1 cm x 0.2 cm depth varying from skin to muscle deep.

Stab wound right side abdomen 4 cm x 2 cm x cavity deep, 8 cm away from umbilicus at 9.00 O''clock position. Omentum and small intestine coming out of wound.

Incised wound 2 cm x 1/2 cm x muscle deep on right side of abdomen 2 cm from umbilicus at 8.00 O''clock position.

The investigation was taken over by S.O. Sant Ram Verma, himself.

The injured complainant-Mahipal died in hospital on 30.9.2000. The inquest was conducted on 1.10.2000 at 1.40 p.m. by S.I. Narendra Kumar Tyagi and he sent the dead body of deceased in sealed cover for post-mortem examination alongwith usual papers.

The post-mortem of cadaver of de-ceased-Mahipal was conducted by Dr. Rajiv Kumar on 23.4.2002 at about 4.00 p.m. Dr. Rajiv Kumar was examined by the prosecution as P.W.-3 who in his report proved the post-mortem report as well as injuries sustained by Mahipal (since deceased). The injuries caused to the Mahipal are as under:

In the opinion of the doctor, the death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. During investigation of Case Crime No. 145 of 2000, the Investigating Officer obtained police custody remand of both the accused and at their instance on 24.10.2000 recovered the two knives alleged to have been used by them in the aforesaid crime, and accordingly Case Crime No. 159 of 2000 u/s 4 /25 of Arms Act against Rajendra, and Case Crime No. 160 of 2000 u/s 4 /25 of Arms Act against Rajesh, were also registered.

After investigation, charge-sheet was submitted by the Investigating Officer. The case was then committed to the Court of session and charge was framed u/s 302 IPC and u/s 25(4) of Arms Act.

The prosecution in support of its case examined, Amar Singh-P.W.1, Dr. A.K. Verma-P.W.2, Dr. Rajeev Kumar-P.W.3, S.I. Sant Ram Verma-P.W.4, Nav Bahar Singh-P.W.5, Shyam Lal-P.W.6, S.I.-Narendra Kumar Tyagi-P.W.7 and Scribe of written report-Jabir Ali-P.W.8, whereas the accused Rajendra and Rajesh were examined u/s 313 Cr.P.C. Omkar Singh, Revenue Inspector-II Kakrala-2 (Tehsil-Dataganj), District Badaun, also appeared as D.W.1.

After hearing counsel for the parties, the Additional and Sessions Judge by its judgment and order dated 22.7.2003 convicted and sentenced the appellants in Session Trial No. 8 of 2001: State v. Rajendra and another, u/s 302 IPC for life imprisonment with fine of Rs. 5000/- each and in default of payment of fine further conviction of 2 years.

The appeal is preferred on the ground that conviction and sentence of appellants is too severe and is against the weight of evidence on record. It is also challenged on the ground that defence of appellants has not been considered by the Court below which has passed the order against the principle of natural justice.

Learned counsel for the appellants submits that Suresh son of Girandi has not been examined by the prosecution and the Court below has failed to consider the material circumstance that Amar Singh-P.W.1 who is said to be an eye-witness of incident neither has any agricultural land nearby the place of occurrence nor any blood of deceased was recovered from the place of occurrence, as such, investigation is defective. According to him, the investigation is also tainted as mother of the deceased had not been examined. He then submitted that it is apparent from record that Jabir Ali during his statement had been permitted by the Court to go out for tea during the course of his statement. In this regard he has relied upon paragraph 26 of the judgment of Court below which reads:

The next contention of counsel for the appellants is that there is contradiction in the statement of prosecution witnesses and in this regard he has relied upon the following assertions being made by prosecution witnesses:

He further submits that Amar Singh-P.W.1 had proved the written report and has relied upon the observations of the Court which have been quoted above. After hearing counsel for the parties, and on perusal of record, we are of the considered opinion that so far as non-examination of Suresh son of Girandi is concerned, it has come on record that he had colluded with the other side. As regard the contention of the counsel for the appellant that P.W.1 is not eye-witness and his agricultural field is not nearby the place of occurrence is concerned, his statement above shows that his agricultural field is about 20 meter away from the place of occurrence, hence, it cannot be said that investigation is defective merely because the Investigating Officer had not shown the agricultural field of P.W.1 in the site-plan. Argument that non-examination of mother of accused is fatal to the incident also does not merit consideration as she had not seen the incident. Moreover, after death of the father of the deceased, his mother had starting living with father of the accused persons.

It is also apparent from the perusal of statement of P.W.1 that mother of Mahipal had taken him to the hospital and, therefore, in any case, she was not an eye-witness. Since she was not eyewitness, therefore, she was not examined. The accused has been convicted on the basis of evidence on record of doing away Mahipal who himself submitted the written report and had lodged the FIR, but died later on. It is apparent from G.D. that Amar Singh alongwith deceased had also accompanied the injured Mahipal to the police station on bullock-cart. The contradiction pointed out by the appellants are not substantial and fatal to the case of the prosecution. The statement of injured recorded u/s 161 Cr.P.C. can in the facts and circumstances be treated as dying declaration.

Dr. Jabir Ali-P.W.8 in his statement has clearly stated that at the time Mahipal had submitted the written report in the police station, he was injured, but was fully conscious. In these circumstances, the written report of the deceased is also his dying declaration on the basis whereof conviction of appellants can be recorded. The statement of P.W.1 is also consistent with the prosecution story. He has no axe to grind with the accused-appellants. The testimony and dying declaration of deceased find full corroboration from medical evidence on record.

Sub-Section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who died later on, even otherwise Sections 161 and 162 Cr.P.C. provide for a restrictive view of the statement recorded during the course of the investigation, but sub-section (2) of Section 162 deals with a situation where the maker of the statement are no more or dies. A perusal of Section 32 of Indian Evidence Act, 1872 and Sections 161 and 162 Cr.P.C. would show that statement of a person recorded u/s 161 Cr.P.C. would be treated as dying declaration on his subsequent, death. In the instant case, we have relied upon the dying declaration of the deceased which was recorded by the police and have treated the written report also as dying declaration on the basis of which FIR was lodged. In this regard, we are supported by the judgment rendered by the Apex Court in the case of Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, .

In view of all the reasons stated above the judgment of the Court below impugned in this appeal is upheld and confirmed. Both the appeals are, accordingly, dismissed.

Ms. Gajala Banu Qudari, appearing as Amicus Curiae, for the appellant, shall be paid Rs. 2100/- by the State as her remuneration fee within two months.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.