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Judgment
Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 26th of September, 1996 passed in Sessions Trial No. 95/95 by the Sixth Additional Sessions Judge, Durg. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life. The facts, briefly stated, are as under:--
Deceased-Gaindlal and appellant-Ranjeet alias Ajaydas were pickpocketors. On 26-10-94, in the night, they came to railway station, Durg. Both took liquor near the railway station. The case of the prosecution is that on account of some dispute relating to distribution of money, the appellant gave a blow on the neck of the deceased by a barber''s knife (oostara). The deceased received injuries over his neck and hands. The appellant ran towards the railway station with a bag. He was chased by the deceased. The appellant was caught by GRP Constables. The deceased came there and said that the appellant is running away with the bag after causing injuries to him. The deceased then was taken to railway police-chowki, Durg, where his report was entered into Roznamchasana No. 1091 dated 29-10-94. The deceased was sent for medical examination. He was examined by Dr. G. S. Thakur (PW-12). His MLC report is Ex.-P/7. Looking to the serious condition of the deceased, he was admitted in surgical ward, however, he died at about 10.30 p.m. Information of his death was sent to Durg police station vide Ex.-P/5. Merg (Ex.-P/6) was recorded. Investigation Officer gave notice (Ex.-P/14) to the Panchas and prepared inquest (Ex.-P/1) on the dead body of the deceased. The dead body was sent for post-mortem, which was conducted by Dr. Suresh Kumar Sinha (PW-7). The post-mortem report is Ex.-P/3. In further investigation, the appellant was taken into custody and his memorandum statement (Ex.-17) was recorded u/s 27 of the Evidence Act and a barber''s knife (oostara) was seized at his instance vide seizure memo Ex.-P/18. The seized articles were sent for chemical examination to Forensic Science Laboratory (F.S.L.), Raipur, from where, a report was received. According to the F.S.L. report blood stains were found on various articles including Article ''F'' (oostara).
Admittedly there was no eye-witness to the incident. The case of the prosecution was based on circumstantial evidence. Following are the main circumstances, on which, the Sessions Judge relied and convicted and sentenced the appellant as above:--
(i) Deceased made oral dying declaration before Constable-Haribahadur (PW-3), Head Constable-Kalyan Singh (PW-4) and one Mohd. Salim (PW-9);
(ii) Deceased lodged a Roznamchasana making allegations against the appellant which was recorded by Sheikh Hamidullah (PW-5); and
(iii) Seizure of blood stained barber''s knife (oostara) at the instance of the appellant.
Mr. R. K. Jain, learned counsel appearing on behalf of the appellant, argued that trachea of the deceased was completely cut; both the Doctors opined that he cannot speak on account of such injury, therefore, the evidence of oral dying declaration is unreliable. About seizure, he argued that the knife was seized from an open place of garbage and as per independent witness of seizure and memorandum, Abdul Salim (PW-17), it was not proved that the appellant gave memorandum or he was present at the time of seizure.
Mr. J. A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court.
We have heard learned counsel for the parties at length and have also perused the records of the sessions case.
It is settled principles that in a case based on circumstantial evidence the circumstances must be fully established. They should be of conclusive nature and tendency. The circumstances should not be capable of being explained and the chain of circumstantial evidence must be complete so as not to leave any doubt about the commission of crime by the accused.
To appreciate argument led by Mr. Jain, let us firstly see the medical evidence.
Dr. G. S. Thakur (PW-12) deposed that on 29-10-94 at about 10.00 p.m. he was present in District Hospital, Durg. The deceased was brought to him. He had examined the deceased. His blood pressure was 110/70 Hg. Sound of rumble was coming from his both lungs. He was in unconscious condition having low pulse. He noticed following injuries:--
(i) Incised wounds 4 x 2� inch at the right portion of the neck. Muscles were deeply cut, veins were cut and trachea was also cut; and
(ii) Incised wound 2� x � inch on the right forearm.
He opined that both the injuries were grievous and were caused by hard and sharp object.
In cross-examination, in Para-14, he admitted that injured was not in a position to give dying declaration. He admitted in clear words that if injury is received on larynx beneath the vocal-cord and trachea is cut, patient would not be in a position to speak. In Para-15, he admitted in clear words that on account injuries sustained by the injured he was not able to speak.
Dr. Suresh Kumar Sinha (PW-7) had conducted autopsy on the dead body of the deceased. He also noticed following injuries:--
(i) Incised wound 5 x 2 x 2.5 inch on the right portion of the neck;
(ii) Incised wound 2 x 1 inch on the right forearm.
He found that trachea of the deceased was completely cut and right carotid artery was also completely cut. He opined that the cause of death was shock as result of excessive bleeding. In cross-examination, Para-4, he admitted that if the trachea is cut, a person can give movement to the mouth, but no voice will come out. He admitted that though after receiving such injuries the persons can move and can remain alive for sometime, but he shall not be in a position to speak. Even if he would try to speak, nobody can understand what he says. He gave his opinion that if the trachea is cut below the vocal-cord the person will be completely speechless.
The case of the prosecution is that the deceased came to Constable-Haribahadur (PW-3) and Head Constable-Kalyan Singh (PW-4) and made oral dying declaration before them. The further case of the prosecution is that thereafter the deceased was taken to the police-chowki and his report was lodged in Roznamchasana by Head Constable-Sheikh Hamidullah (PW-5). These are the two sets of dying declarations allegedly made by the deceased before the above police persons. If the deceased had sustained above deep cut injury over his trachea and his trachea was completely cut, as admitted by both the Doctors, he would not be in a position to speak. This creates a doubt on the testimonies of above police witnesses and one welding-wala, Mohd. Salim (PW-9), who claimed that the deceased had made oral dying declaration before them. According the above police witnesses, the deceased was taken to G.R.P. Thana, Durg, where Roznamchasana (Ex. P/2) was recorded and then the deceased was sent to the hospital. Why the police recorded the report in Roznamchasana and why a regular first information report was not recorded. Mr. Jain has argued that since signature of the informant is required in the F.I.R. which is not required in Roznamchasana and the deceased was not in a position to sign as he was unconscious, the police, instead of recording F.I.R. simply recorded Roznamchasana. Such reason may be hypothetically, but it certainly creates a doubt and the question remains unanswered as to why a first information report at the instance of the deceased was not recorded by the police.
On consideration of the entire evidence available on record and particularly considering the medical evidence of 2 Doctors that after sustaining such injuries, the injured would not be in a position to speak, it was not safe to rely on the circumstance of oral dying declarations allegedly made by the deceased. We are of the view that the learned Sessions Judge fell into error in accepting the evidence of oral dying declarations allegedly made by the deceased before the 2 Constables and before the Head Constable in police station.
As far as circumstance of seizure of knife (oostara) at the instance of the appellant is concerned, the independent witness of memorandum and seizure, Abdul Salim (PW-17), deposed that police took his several signatures on various documents. He admitted his signatures over memorandum statement (Ex.-P/17). He deposed in clear words in his examination-in-chief that though at the time of recording of memorandum Arif Imtiaz was present there, but he had not seen the appellant at that place. About seizure, he deposed that oostara was seized from the garbage place near tempo-stand, but he cannot to say as to whether the appellant was present at that time or not. This creates doubt on the memorandum and seizure of knife (oostara) at the instance of the appellant. Moreover there is no report to the effect that the blood stains found over oostara were of human blood and were matching to the blood group of the deceased. We are of the view that in light of the above evidence, this circumstance was also not fully established against the appellant and was not incriminating.
For the foregoing reasons, we are unable to sustain the conviction of the appellant on the above set of circumstantial evidence. The circumstances were not fully established. The circumstances were not of conclusive nature and tendency. The circumstances were capable of being explained and the chain of circumstantial evidence was also not complete. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. The appellant is acquitted of the charges framed against him. The appellant was taken into custody on 30-10-94 and was released on bail on 19-1-2002. Presently he is on bail. His bail bonds are cancelled and surety stands discharged.