Ramu alias Prabhunath (In Jail) vs State of U.P.

Imtiyaz Murtaza, J.—This jail appeal has been filed by the appellant against the judgment and order dated 28.5.2001 passed by Addl. District & Sessions Judge, Court No. 7, Allahabad in S.T. No. 182 of 1999 whereby the appellant has been convicted u/s 302/34 I.P.C. and sentenced to undergo imprisonment for life.

Briefly stated the prosecution case is that the appellant alongwith Nanhey went to the residence of Pappu on 2.6.1998 at about 9.00 A.M. and thereafter all the three went to Holagarh. While they were returning in the evening by a Tempo and they reached near the village Ram Charanpura at about 7.30 P.M. they dragged Pappu deceased from the tempo and assaulted him with lists and knife. On his alarm being raised, several persons were attracted and intervened. The accused persons threatened him and fled away from the place of occurrence. Alter sustaining injuries, Pappu came to P.S. Soraon and lodged an oral report at P.S. Soraon and on the basis of his information, a case was registered against the appellant and co-accused Nanhey under Sections 323/324/504 and 506 I.P.C.

After the registration of the case Sub-Inspector B.K. Singh commenced investigation. He recorded the statement of the deceased u/s 161 Cr.P.C. Pappu was sent to Hospital where he was examined by Dr. A.K. Saxena at about 10.45 A.M. and he noted following injuries:

Lacerated wound of size 1 x .5 cm x muscle deep on right upper lip.

Multiple lacerated wound of size varying from 1 x .5 cm x muscle to .5 x .5 cm x muscle deep on right side of check.

Traumatic swelling of size 4 x 3 cm on the right cheek in front of right ear. Advised X-ray right cheek mandible.

Multiple lacerated wound of size .5 x .5 cm x skin deep on Rt. side of neck and L.W. of size 1 x .5 cm. x dept. Kept under observation on front of neck (Multiple) Adv. X-ray neck AP. Lat.

Multiple lacerated wound of size varying from .5 x .5 cm x skin deep to 1 x .5 cm x skin deep and some muscle deep on right side of chest and abdomen extending from right nipple to right iliac fosse.

Traumatic swelling of Lt. side of chest Adv. On chest P.a. view.

In the opinion of the doctor all the injuries were simple caused by blunt object.

Pappu was admitted in the hospital at about 1.00 A.M. on 3.6.1998. He succumbed to his injuries and case was converted u/s 302 I.P.C. The dead body of Pappu was sent for post-mortem examination.

Dr. M.K. Bhatia conducted the post-mortem examination of the deceased on 5.6.98 at about 3.00 P.M. and he noted following ante mortem injuries:

Incised wound 2" x �" x bone deep on left side of head 1�" above Lt. ear.

A contusion 5" x 1 �" on front (Lt.) side of chest in middle part.

Multiple abraded contusion of different sizes are present all over the body.

In the opinion of the doctor the cause of death was due to shock and hemorrhage as result of ante mortem injuries.

After the submission of charge-sheet, the case was committed to the court of Sessions.

In order to prove its case the prosecution examined P.W. 1 Smt. Chameli Devi, P.W. 2 Panna Lal, P.W. 3 Manna Lal, P.W. 4 Dr. M.K. Bhatia, P.W. 5 B.B. Singh, S.O., P.W. 6 Dr. Ajay Kumar Saxena, P.W. 7 Daya Shankar, Constable and P.W. 8 Balkishan Singh, S.l.

The case of the defence was of denial and false implication. The appellant in his statement u/s 313 Cr.P.C. stated that he was plying rickshaw alongwith the deceased. The police in order to solve the case had falsely implicated him.

11 P.W. 1 Smt. Chameli Devi, deposed that Rakesh alias Pappu was her son. He was a rickshaw puller. Her husband was a rickshaw mechanic. Her son had two friends namely, Ramu alias Prabhunath and Nanhey and they were very good friends. Ramu and Nanhcy came to her house at about 9 a.m. on 2.6.1998 and went alongwith her son. They told her that there was marriage of their sister and her son would return in the evening. When her son did not return she searched for him at several places. The police came in the morning and told her that someone had assaulted her son and police got him admitted in Swaroop Rani Hospital. When she reached in the Hospital her son was already dead. Before her reaching in the Hospital her husband and brother-in-law had already reached there and her son had informed her about the occurrence.

P.W. 2 Panna Lal deposed that Pappu was his son. He was a rickshaw puller and he was friend of Ramu alias Prabhunath and Nanhey and both were rickshaw pullers also. On 2.6.1998 Ramu alias Prabhunath and Nanhey took his son for taking him to village Holagarh at that time he was taking tea at Polytechnic Gate at about 9 a.m. He saw that all the three were sitting on a rickshaw and thereafter he went to work, His son did not come to home for plying rickshaw. He started searching his son. He also enquired his wife who told him that Ramu and Nanhey took him to Holagarh. Rickshaw pullers also informed him that Ramu and Nanhey had taken him alongwith them who were carrying weapon like a Trishul and a knife. They started searching for them. In the morning he received information that Ramu and Nanhey had caused injuries to his son and he is admitted in the Hospital. He reached S.R.N. Hospital and he came to know that his son had expired.

P.W. 3 Manna Lal deposed that Pappu alias Rakesh was his nephew. About 15 months back at about 9 a.m. he was going to attend his duty. He saw there Pappu alias Rakesh, Nanhey and Ramu. He also enquired from him as to where he was going and he disclosed that they were going to Soraon in the relationship of Nanhey. On the next date he received information that Pappu alias Rakesh was seriously injured and he was admitted in S.R.N. Hospital by Soraon police. In the next morning he reached S.R.N. Hospital and saw that his nephew was admitted there. On enquiry he disclosed that Nanhey and Ramu took him towards Soraon and Ramu and Nanhey had assaulted him by a weapon like Trishul. He also informed that he had lodged the report at P.S. Soraon and the police of Soraon had got him admitted in the Hospital. His nephew succumbed to his injuries.

It is relevant to mention here that the Sessions Judge did not believe the statement of the deceased made to P.W. 3 Manna Lal because when he reached there Nanhey had already expired. We also feel that the Sessions Judge had rightly disbelieved this part of the testimony of P.W. 3 Manna Lal.

P.W. 4 Dr. M.K. Bhatia conducted the post-mortem examination on the dead body of the deceased, which is Ext. Ka. 1.

P.W. 5 S.H.O., B.B. Singh is the investigating officer of the case.

P.W. 6 Dr. A.K. Saxena had medically examined the deceased while he was in injured condition at T.B. Sapru Hospital. The injury report of the deceased is Ext. Ka. 10.

P.W. 7 Constable Daya Shankar prepared the chik F.I R. and G.D. entry of the registration of the case which is Exts. Ka. 11 to Ka. 13.

P.W. 8 is Sub-inspector Bal Kishan Singh, who recorded the statement of the deceased u/s 161 Cr.P.C, which is Ext. Ka. 14.

Heard Sri Samit Gopal, amicus curiae, for the appellant and learned A.G.A. for the State.

The counsel for the appellant challenged the findings of the trial court on the ground that the prosecution had examined only interested witnesses and the trial court wrongly treated first information report and 161 Cr.P.C. statement as dying declaration.

We have carefully examined the evidence on the record. The witnesses have deposed that the deceased was last seen alongwith the appellant and co-accused. There is nothing on the record to disbelieve this part of the prosecution story. The first information report shows that occurrence took place at about 7.30 p.m. and the deceased was assaulted by fists and knife. The report was lodged by the deceased at 9.15 p.m. His presence is also mentioned in the G.D. entry. P.W.7 constable Daya Shanker deposed that he prepared the report on the dictation of Pappu son of Panna Lal. He also obtained the thumb mark of Pappu. Thereafter he was referred to doctor for medical examination report. He was medically examined on 2.6.1998 at 10.45 p.m. by Dr. A.K. Saxena, P.W.6. He was brought by constable Gulab Singh. He also obtained his thumb impression on the injury report. It was nowhere mentioned that injured was unconscious. The Apex Court in the case of Babu Lal and Others Vs. State of Madhya Pradesh, has held that "there is no legal bar for the information given by the deceased to be treated as a dying declaration." The post mortem report of the deceased shows that the deceased had sustained incised wound, contusion and abraded contusion. The dying declaration finds corroboration from the medical evidence. The law regarding dying declaration is well established. A dying declaration should inspire confidence and it should not appear to be tutored. Its intrinsic worth and reliability can be determined from its tenor and contents. The Apex Court in the case of Muthu Kutty and Another Vs. State by Inspector of Police, Tamil Nadu, has held as under:

Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat.

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisXfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.

(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.

In the light of the above principles, we are of the opinion that the dying declaration is voluntarily made by the deceased and finds corroboration by the medical evidence about the time and manner of assault. It is trustworthy and credible. The Sessions Judge has rightly placed reliance on the dying declarations.

In view of these facts, the question is whether the appellant is guilty of the offence punishable u/s 302 I.P.C? Learned Counsel for the appellant submits that on the basis of the finding an offence punishable u/s 302 I.P.C. is not made out and at best the appellant may be guilty of offence punishable u/s 304-II I.P.C. The facts disclosed that the appellant did not have such an intention nor can be find any intention on the part of the appellant of causing bodily injury sufficient in the ordinary course of nature to cause death. We are, therefore, of the view that the offence committed is not an offence punishable u/s 302 I.P.C. However, it can not be denied that the offence would fall u/s 304 I.P.C. liven though the appellant inflicted injury without an intention of causing death, he knew that the injury is likely to cause death. We, therefore, find that the offence committed by the appellant is one, which is punishable u/s 304-II I.P.C.

Keeping in view of the facts and circumstances of the case we sentence him to undergo rigorous imprisonment for 8 years u/s 304-II I.P.C.

Having regard to the facts and circumstances of the case we partly allow the appeal and set aside the judgment and order of the trial court to the extent that the conviction of the appellant u/s 302 I.P.C. is set aside and instead the appellant is found guilty of the offence u/s 304-II I.P.C. The appellant is in jail. In case the appellant has already served the sentence, he shall be released forthwith unless otherwise he is wanted in any other case.

Office is directed to communicate this order to the concerned Chief Judicial Magistrate for necessary compliance forthwith.