Ram Narain (In Jail) vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 11.8.1978 passed by IIIrd Additional Sessions Judge, Agra in Session Trial No. 436 of 1977, convicting Appellant Ram Narain u/s 302, I.P.C. and sentencing him to undergo imprisonment for life.

The prosecution story briefly stated was an under:

2.1. Appellant Ram Narain son of Lajja Ram Tyagi and Natthi Lal deceased were residents of same village. Prior to 5-6 years of the occurrence of this case. Lajja Ram, father of Ram Narain Appellant was murdered. Natthi Lal deceased and some other persons were prosecuted for the murder of Lajja Ram, but they were acquitted prior to one year of the occurrence of this case. On account of it, Ram Narain Appellant was having enmity with Natthi Lal deceased. Natthi Lal deceased had his house facing towards north. There was a chabootra in front of his house and on the northern side of said chabootra there were two cattle troughs belonging to Natthi Lal.

2.2. On the evening of 21.12.1976 at about 6.30 p.m. Smt. Jai Shri (P.W. 1) wife of Natthi Lal deceased was standing on the chabootra in front of her house. Km. Kela Devi (P.W. 2), daughter of Natthi Lal deceased was providing fodder to the she buffaloes tethered on the cattle troughs. Gulab Singh, maternal brother of Natthi Lal was sitting in front of the house of Natthi Lal. A lighted lantern was hanging on the outer wall of the house. Smt. Shanti Devi (P.W. 3) sister-in-law of Natthi Lal deceased had gone to attend call of nature in the sugarcane field of Ram Charan. Natthi Lal was sitting at the house of Rajesh of his village. Thereafter he was returning to his house. Appellant Ram Narain was coming behind him. When Natthi Lal climbed stair case of his chabootra, Ram Narain Appellant fired a shot from country-made pistol on his back. Sustaining firearm injury Natthi Lal fell down by his chest on the chabootra. The occurrence was witnessed by Smt. Jai Shri (P.W. 1), Km. Kela Devi (P.W. 2) and Gulab Singh. After causing injury on the deceased the Appellant ran away. The persons of the village assembled and laid Natthi Lal on a charpai. Natthi Lal deceased dictated report Ext. Ka-6 to Bhajan Lal (P.W. 6). He was taken to Police Station Barhan, where he lodged written report at 7.15 p.m. On the basis of written report Ext. Ka-6 Head Constable Deep Chand Pathak (P.W. 8) prepared chick F.I.R. Ext. Ka-8 and made an endorsement of the same at G.D. report Ext. Ka-9. Natthi Lal was sent to Primary Health Centre Etmadpur at Barhan, where Dr. Sunil Kumar Garg (P.W. 4) recorded his dying declaration Ext. Ka-3 in presence of Babu Ram and Chunni Lal.

Investigation of the case was taken up by Sri Rohan Singh (P.W. 11). He interrogated Head Moharrir Deep Chand at the police station and thereafter came to Primary Health Centre Barhan, where interrogated Natthi Lal deceased. The condition of Natthi Lal was serious and therefore, after providing first aid he was referred to District Hospital, Agra, where he was admitted and died at 10.00 p.m.

Sri Rohan Singh (P.W. 11) visited the spot and interrogated Km. Kela Devi (P.W. 2). He also inspected place of occurrence and prepared site plan Ext. Ka-27. He recovered one wad piece (tickli) from the spot, sealed it on the spot and prepared recovery memo Ext. Ka-28. He also inspected lantern which was in working order and gave it in supardagi of Phool Singh. Thereafter the investigation was taken up by Sri Ved Prakash Tyagi (P.W. 10).

Inquest of the dead body of Natthi Lal was conducted on 21.12.1976 by Sri Babu Ram Sub-Inspector of Police Station Rakab Ganj, who sealed the dead body and handed over to constable Suresh Singh (P.W. 9) for taking it for post-mortem.

On 22.12.1976 Pancham Singh (P.W. 5) brother of Natthi Lal deceased got information regarding the occurrence at Gonda, district Aligarh, where he was posted as Gram Sevak. He came to District Hospital, Agra, where his wife Smt. Shanti Devi (P.W. 3) was also present. On the information supplied by Smt. Shanti Devi (P.W. 3) Pancham Singh (P.W. 5) prepared a report Ext. Ka-5 and lodged the same at the police station. In his above report he also levelled allegations of criminal conspiracy against Jauhari and Shiv Narain.

Autopsy on the dead body of Natthi Lal was conducted on 22.12.1976 by Dr. S. C. Sharma (P.W. 7) who found eight gun shot wounds of entry on right side of back of deceased and cause of death as shock and haemorrhage. He prepared post-mortem report Ext. Ka-7.

The second Investigating Officer Sri Ved Prakash Tyagi interrogated Jai Shri (P.W. 1), Shanti Devi (P.W. 3), Bhajan Lal (P.W. 6), Pancham Singh (P.W. 5) and Gulab Singh. He searched the Appellant but he was not traceable and he obtained process under Sections 82 and 83, Cr. P.C. against him.

Appellant Ram Narain surrendered in court. The other accused Jauhari and Shiv Narain were absconding. On completion of investigation the Investigating Officer submitted charge-sheet against the Appellant and Jauhari and Shiv Narain as absconders.

Cognizance of the case was taken by the Magistrate. Jauhari and Shiv Narain also surrendered and the case was committed to the Court of Session.

Appellant Ram Narain was charged with the offence punishable u/s 302, I.P.C., while other accused Jauhari and Shiv Narain with the offence punishable u/s 120B, I.P.C.

The Appellant pleaded not guilty and contended in his statement u/s 313, Cr. P.C. that he was falsely implicated on account of enmity and he was less than 16 years of age.

The prosecution in support of its case examined Smt. Jai Shri (P.W. 1), Km. Kela Devi (P.W. 2) as witnesses of fact, besides Smt. Shanti Devi (P.W. 3), Dr. Sunil Kumar Garg (P.W. 4), Pancham Singh (P.W. 5), Bhajan Lal (P.W. 6), Dr. S. C. Sharma (P.W. 7), Head Constable Deep Chand Pathak (P.W. 8), Head Constable Suresh Singh (P.W. 9), Sri Ved Prakash Tyagi Second Investigating Officer (P.W. 10) and Sri Rohan Singh First Investigating Officer (P.W. 11) as formal witnesses.

Learned Sessions Judge on considering evidence of the prosecution held that the charge of conspiracy was not established against Jauhari and Shiv Narain and the prosecution has established the guilt of Appellant Ram Narain for the offence punishable u/s 302, I.P.C. He further held that the Appellant could not establish that he was below 16 years of age. With these findings he convicted Appellant Ram Narain u/s 302, I.P.C. and sentenced him to undergo imprisonment for life and acquitted Jauhari and Sheo Narain.

Aggrieved with his above conviction and sentence the Appellant has come up in this appeal.

We have heard Sri P. N. Misra, learned Counsel for the Appellant and Sri R. K. Singh, learned A.G.A. for the Respondent and have gone through the entire evidence on record.

The death of deceased and cause of his death are not disputed. Dr. S. C. Sharma (P.W. 7) who conducted autopsy on the dead body of Natthi Lal deceased found following ante-mortem injuries on his person:

Eight gun shot wounds of entry each of size 1/3" x 1/3" x abdominal cavity deep in an area of 3-1/2" x 3-1/2" at the level of 12th thoracic vertebra near mid line right side back. Several metallic pellets palpable on right hypochondria under skin.

He further stated that internal examination showed that posterior part of lower lobe of right lung had one through and through hole 1/3" x 1/2". Right hypochondria and right side epigastric musculature had eight metallic shots and effused with blood. Stomach contained 4 ozs. digested food materials, small intestine contained faecal matter and large intestine contained faecal matter. Right lobe of lever had eight through and through holes with lacerations. Right kidney upper lobe had through and through hole with lacerations. The cause of death was shock and haemorrhage as a result of above noted injuries.

The above medical evidence had not been challenged and, therefore, the death and cause of death of Natthi Lal deceased has been established.

The date and time of occurrence is also not disputed. According to prosecution the occurrence took place on 21.12.1976 at about 6.30 p.m. The report of the occurrence was lodged by the deceased himself at 7.15 p.m. and the distance of police station was one kilometre. The deceased who was in injured condition was taken to police station on a charpai. Thus, there was no delay in lodging the report. The ocular witnesses have also stated that the occurrence took place on 21.12.1976 at 6.30 p.m. Their above evidence on the above point has not been challenged. Therefore, the date and time of occurrence has also been established.

The motive alleged by the prosecution was that Lajja Ram father of Ram Narain Appellant was murdered and Natthi Lal deceased was prosecuted for his murder. That Natthi Lal and other accused were acquitted in the said case prior to one year of the occurrence and, therefore, the Appellant was having enmity with the deceased and had to take revenge. Smt. Jai Shri (P.W. 1) stated that after acquittal of Natthi Lal Appellant Ram Narain had threatened Natthi Lal to kill him. Thus, there was strong motive for the Appellant.

The learned Counsel for the Appellant contended that the deceased was murdered somewhere else and not in front of his house as no blood was found on the spot. According to prosecution, the deceased was killed on his chabootra in front of his house. Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) stated that the occurrence took place on the chabootra and that Natthi Lal deceased was coming to his house and when he boarded the first step of stair case of the chabootra Appellant Ram Narain fired on him from his back and after sustaining injury Natthi Lal fell down on the chabootra. Jai Shri (P.W. 1) is wife of deceased and according to her evidence at the time of occurrence she was standing on the chabootra to take fresh air. Km. Kela Devi stated that she was providing fodder to she buffalo near chabootra. The presence of Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) in front of their house in the evening was natural and probable. It is true that no blood was found on the spot but the absence of blood on the spot is self-explained. Injuries on the person of deceased were on the back and he fell down on the chabootra from the side of his chest. There was no exit wound. Moreover, the medical evidence shows that the blood was found inside the body. It is also in the evidence of Smt. Jai Shri and Km. Kela Devi that just after the occurrence, the deceased was laid on a charpai. The occurrence had taken place in the month of December and in all probabilities, the deceased was wearing clothes. In these circumstances, there was no possibility of falling blood on the spot. Therefore, the absence of blood on the spot does not belie the place of occurrence. Moreover, the Appellant has not suggested any counter place of occurrence and blood was not found at any other place. Therefore, it is amply proved that the occurrence took place on the chabootra of the deceased in front of his house.

The next contention of the learned Counsel for the Appellant was that there was no sufficient light on the spot and, therefore, recognition of assailant was not possible. He further contended that shot on deceased was fired on his back and no body could see the assailant. Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) have stated that a lighted lantern was hanging on the outer wall of their house. The Investigating Officer Sri Rohan Singh (P.W. 11) who visited the spot on the night of occurrence found the lantern on the spot and it was in working order. He has also shown the place of lantern at place ''E'' in the site plan which is in the outer wall of baithak adjacent to chabootra. Thus, the light of lantern was spreading over the chabootra on which the occurrence took place and there was sufficient light on the spot in which known person could be easily recognized. Moreover these two witnesses are villagers and are used to live in the midst of nature and accustomed to live without light. In the above light of lantern the two witnesses could easily recognise the Appellant who was the residents of their own village and had his face was towards them. As such there was sufficient light on the spot and witnesses had full opportunity to recognise the assailant.

As mentioned above Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) are wife and daughter of the deceased and their presence on the spot was most natural and probable. No doubt they are near relatives of the deceased but on this ground their testimony cannot be discarded as the near relatives seldom prefer to spare out the real assailant and falsely implicate any innocent person. The Appellant had other five brothers who were equally inimical with the deceased and the ocular witnesses had only named the Appellant and not his other brother. This aspect also strengthens the truthfulness of the evidence of above ocular witnesses.

Learned Counsel for the Appellant contended that Bhajan Lal (P.W. 6) had ruled out presence of ocular witnesses Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) on the spot. He stated that when he reached on the chabootra he found Natthi Lal lying on the structures of the chabootra and Hakim Singh, Ram Singh and Amiri Singh were present on the chabootra. There was no other person of the village and the wife and daughter of the deceased and Gulab Singh were there. The witness has categorically stated in his cross-examination that the house inmates, i.e., wife of deceased and his daughter and Gulab were present. Thus, he admits the presence of Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) on the spot when he came to chabootra after hearing the sound of fire. Therefore, the presence of these two witnesses Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) is also corroborated by Bhajan Lal (P.W. 6).

Besides the above eye-witness account of these two eye-witnesses the prosecution has also relied on the dying declaration of Natthi Lal deceased. The prosecution relied on three sorts of dying declaration (i) the F.I.R. dictated and lodged by the deceased ; (ii) statement of the deceased recorded by the Investigating Officer Sri Rohan Singh, and (iii) dying declaration recorded by the doctor. The trial court has disbelieved the dying declaration recorded by the Investigating Officer and having gone through the evidence of Rohan Singh (P.W. 11) and the dying declaration recorded by him Ext. Ka-26, we also find that necessary requirements of recording the statement in presence of the witnesses was not complied with and, therefore, the above dying declaration cannot be safely relied on.

So far the dying declaration contained in the F.I.R. is concerned Bhajan Lal (P.W. 6) stated that Natthi Lal deceased was his uncle. On 21.12.1976 he heard sound of fire and came to chabootra of Natthi Lal, where he was lying. Natthi Lal dictated him the report and he prepared report Ext. Ka-6 on his dictation.

Learned Counsel for the Appellant contended that Natthi Lal was not in a position to dictate the report in view of the injury sustained by him. Dr. S. C. Sharma (P.W. 7) who conducted autopsy on the dead body of deceased has stated that the deceased would not have become unconscious after sustaining injuries. It is also clear from the evidence of Deep Chand Pathak (P.W. 8) that Natthi Lal came to the police station and handed over written report Ext. Ka-6. He denied the suggestion of the Appellant that Natthi Lal was not in a position to speak when he was brought to the police station. This shows that Natthi Lal was fully in senses even when he was brought to the police station and, therefore, he was in his full senses on the spot when he dictated report Ext. Ka-6 to Bhajan Lal (P.W. 6).

It was pointed out that some space was left in between the last lines of the F.I.R. Ext. Ka-6 and signature of the deceased and this shows that signature of the deceased on the report was subsequently obtained. We find no force in the above contention as the report was not written by a professional writer and Bhajan Lal (P.W. 6) the scribe of the report had left space for signature as was considered sufficient by him.

It was further contended that the report was prompted by Smt. Shanti Devi (P.W. 3) as she had gone with the deceased to police station. But this contention has no force as Bhajan Lal (P.W. 6) the scribe of the report has stated in his cross-examination that when Natthi Lal was dictating the report Smt. Shanti Devi (P.W. 3) was standing at a distance of two paces and was weeping. She had not told anything and, therefore, there was no interference of Smt. Shanti Devi (P.W. 3) in preparation of the report. Thus, it is established that the deceased was the author of the report Ext. Ka-6 and the facts mentioned in the F.I.R. relates to the cause of his death. In Munnu Raja and Another Vs. The State of Madhya Pradesh, , wherein the statement made by the deceased to the Investigating Officer on the police station by way of first information report which was recorded in writing was held by Apex Court to be admissible in evidence. Therefore, the statement of deceased contained in the F.I.R. is admissible u/s 32 of the Indian Evidence Act.

The other dying declaration relied on by the prosecution was recorded by Dr. Sunil Kumar Garg (P.W. 4). He stated that when Natthi Lal brought to Primary Health Centre, Etmadpur at Barhan he was in his senses. He gave him first aid and he became fully conscious. He recorded his statement. What was stated by the deceased was reduced into writing. He further stated Babu Ram and Chunni Lal were also present when he recorded the dying declaration Ext. Ka-3.

Learned Counsel for the Appellant contended that the doctor has not appended any certificate regarding mental fitness of the deceased and, therefore, it is not proved that the deceased was in a fit state of mind to give statement.

Dr. Garg (P.W. 4) has categorically stated that the deceased was in his full senses when he recorded his statement. The Apex Court held in the case of Laxman Vs. State of Maharashtra, , that dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most of the cases, however, such statements are made orally before the death ensues and is reduced to writing by some one like a Magistrate or a doctor or a Police Officer. When it is recorded no oath is necessary, nor is the presence of a Magistrate is absolutely necessary, although to assure authenticity it is usual to call a Magistrate if available for recording the statement of a man about to die. There is no requirement of law that the dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by a doctor, the declaration can be acted upon, provided the Court ultimately holds the same to be voluntary and truthful. A certification by a doctor is essential by a rule of caution and, therefore, the voluntary and truthful nature of the declaration can be established otherwise.

In Mafabhai Nagarbhai Raval Vs. State of Gujarat, , it was held by Apex Court that the doctor who has examined the victim was the most competent witness to speak about her condition.

In the instant case we find that Dr. Garg (P.W. 4) has categorically stated that the deceased was in a fit state of mind. The doctor was disinterested witness and is a responsible officer and there being no circumstance or material to suspect that he had any animus against the accused or in any way interested in fabricating the dying declaration. The question of doubt on the dying declaration recorded by the doctor does not arise.

It was further contended that several other persons had accompanied the deceased and there was possibility of tutoring him and, therefore, the dying declaration was an outcome of tutoring. This argument has also no force in view of the specific evidence of Dr. Garg (P.W. 4) when he stated that he had recorded the statement of deceased in a room and villagers were not present in the said room. Therefore, there is nothing on record to infer that the dying declaration recorded by Dr. Garg was outcome of tutoring. In the above dying declaration it is specifically mentioned that the Appellant fired pistol shot at deceased in the manner alleged by the prosecution.

Learned Counsel for the Appellant contended that in the dying declaration Ext. Ka-3 recorded by the doctor the deceased had not named the Appellant and he had stated that the assailant was son of Lajja Ram, that Lajja Ram has admittedly other sons also and, therefore, by the above dying declaration the identity of Appellant is not fixed. It is true that in the dying declaration Ext. Ka-3 the deceased has mentioned the Appellant as son of Lajja Ram, but if this statement is read in the light of F.I.R. lodged by the deceased, another dying declaration it becomes crystal clear that the deceased had named the Appellant Ram Narain son of Lajja Ram as assailant and ocular testimony of Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) clearly indicated that the assailant was none else but the Appellant and the deceased in his dying declaration had referred the Appellant as son of Lajja Ram and no other son of Lajja Ram.

It was further contended that the shot on the deceased was fired from his back and, therefore, the deceased was not in a position to recognize the assailant. But the F.I.R. lodged by the Appellant indicates that while the deceased was coming to his house he had noticed that the Appellant Ram Narain was coming behind him and shot on him was fired from a distance of 5-6 paces. There is nothing in the evidence on record to infer that some other person was also accompanying the Appellant and, therefore, the deceased was in a position to recognise the Appellant who was of his own village, and was coming behind him.

Thus, we find that the two dying declarations of the deceased contained in the F.I.R. and recorded by Dr. Garg (P.W. 4) are truthful, voluntary and made by a person who had opportunity to recognise the assailant and, therefore, both the dying declarations are reliable and they are also free from infirmities.

As held by Apex Court in State of U. P. v. Ram Sagar Yadava, AIR 1985 SC 416, it is well-settled that as a matter of law, a dying declaration can be acted upon without corroboration Khushal Rao Vs. The State of Bombay, ; Harbans Singh v. State of Punjab 1962 Supp (1) SCR 104 ; Gopalsingh and Another Vs. State of Madhya Pradesh and Another, .

In view of our above discussions and observations we find that the oral testimony of Smt. Jai Shri (P.W. 1) and Km. Kela Devi (P.W. 2) are worth reliable and the dying declaration contained in the F.I.R. and recorded by Dr. Garg (P.W. 4) are also truthful and worth reliable. From the above oral evidence as well as the dying declarations, the complicity of Appellant Ram Narain in the murder of deceased has been fully established.

Lastly, it was contended by the learned Counsel for the Appellant that the Appellant was below 16 years of age at the time of occurrence and, therefore, he cannot be sentenced or sent to prison. Therefore, we have to consider whether the Appellant was below 16 years of age and if so what would be its effect on his sentence.

This point was also raised before the trial court and reliance was placed on the statement of accused/Appellant u/s 313, Cr. P.C. and result sheet of the Appellant of Junior High School Examination for the year 1974. But the learned Sessions Judge held that result sheet was not proved and the Appellant had given his different ages at different stages and therefore, it is not proved that the Appellant was less than 16 years of age and was not entitled to benefit of Section 32, U. P. Children Act (the law prevalent at that time).

A duplicate copy of result sheet of Junior High School Examination for the year 1974 of district Agra has been filed on behalf of Appellant in which his date of birth was mentioned as 25.12.1960, but that result sheet has not been proved according to law as no witness has been examined to prove the same. Therefore, it was rightly disbelieved by the trial court. No doubt the Appellant mentioned his age as 16 years in his statement u/s 313, Cr. P.C. recorded on 28.7.1978, but the trial court has observed that the Appellant has given his age as 15 years in the affidavit filed on 21.1.1977 along with the bail application. If the date of birth given in the result sheet of Junior High School Examination is taken into consideration the age of Appellant at the time of recording his statement u/s 313, Cr. P.C., i.e., 28.7.1978 was 17-1/2 years, but still the Appellant gave his age on the said date as 16 years. In these circumstances it was rightly observed by the trial court that the Appellant has given different ages at different stages to suit his purpose and could not establish that he was below 16 years of age on the date of occurrence.

No doubt the learned Sessions Judge has observed that according to Section 27 of U. P. Children Act, the material age below 16 years should be on the date of sentence but as held by Apex Court in the case of Bhoop Ram v. State of U. P. 1989 (1) AWC 562 (SC): 1989 UP Cri 243 the material age i.e., below 16 years should be taken into consideration on the date of occurrence but since the age given by Appellant in his statement u/s 313, Cr. P.C. suffers from material discrepancies and the result sheet has not been proved the Appellant had not been able to establish that he was below 16 years of age at the time of occurrence also. Moreover, the Appellant could not be expected to know the exact date of his birth and he came to know it through his parents and other persons. No such person has been examined and no such suggestion was given to the ocular witnesses that the Appellant was below 16 years of age at the time of occurrence, nor there is any other evidence on record to prove this fact. The Appellant has also not applied before the trial court to ascertain his age by medical examination. Therefore, there is no evidence on record to hold that the Appellant was below 16 years of age and mere statement of Appellant u/s 313, Cr. P.C. on this point is not sufficient to prove his above age. Therefore, he was not entitled to benefit of U. P. Children Act.

In view of our above discussions and observations we find no force in the appeal.

The appeal is accordingly dismissed. Conviction of Appellant u/s 302, I.P.C. and sentence of imprisonment for life awarded by the trial court are confirmed.

The Appellant is on bail. He shall surrender before the C.J.M. concerned to serve out the sentence.

C.J.M., Agra is directed to issue non bailable warrant against the Appellant and secure his arrest by all other modes available under law and send him to jail to serve out the sentence.

A copy of this order be sent to C.J.M., Agra for information and necessary action.