Sheoraj, Kirpal, Ram Autar and Sompal vs State of U.P.

Saroj Bala, J.—This Criminal appeal is directed against the judgment and order dated 29.10.82 passed by the Additional Sessions Judge-II, Moradabad in Sessions Trial No. 438 of 1981 State v. Sheoraj and Ors. where by convicting the appellants for the offence u/s 302/34 I.P.C. and sentencing them to rigorous imprisonment for life.

The essential facts leading to the appeal are that on 8.12.79 at about 7 A.M. the victim alongwith her elder sister Bhuri (P.W.2) had been going to the jungle for grazing pigs. Her sister was ahead of her. On hearing the outcries of ''save save'' the witness (P.W.2) turned back and saw accused appellants setting fire to her sister with sugar-cane leaves. The incident took place in the eatern corner of the her of Malkhan situated in the jungle of village Hasha Nagla, within the territorial limits of Police station Mainather. The witness Bhuri was thereatened with dire consequences when she went forward to help sister. The motive behind the commission of offence was litigation for land with Ram Charan, father of the appellants. The first informant Gendan Lal (P.W.1) had gone to Moradabad to attend his case fixed on 7.12.79 and he reached home at about 1 P.M. on 8.12.79 on receiving information about the incident. He found his daughter at his Moradabad where she was medically examined by Dr. Y.C. Gupta (P.W.8) on 8.12.79 at 5.22 P.M. and following injuries were notice on her body as per injury report (Ext. Ka-12):

Burns on the whole of the back of both side chest and both buttocks and total back.

Burns on the total front of right thigh.

Burns on the front of left this.

Burns on the whole of the abdomen and lower part, both sides chest, involving the right side full breast and part of left breast.

Burns on the front of right upper arm.

Burns on the front and back of the left upper arm.

The general condition was very law. Pulse not palpable. B.P. was not recordable. The patient was unconscious. Duration was about half day. The injuries were caused by burns.

The F.I.R. (Ext. Ka-1) was lodged on 8.12.79 at 7.05 P.M. On the basis of written report (Ext. Ka-1) check F.I.R. (Ext. Ka-4) was prepared by H.M. Har Dayal Singh and crime was registered at serial No. 58 (Ext. Ka-5) 8.12.79 at 6.05 P.M. was made in the general diary (Ext. Ka-3). The crime was initially registered at the police station Kotwali. The written report, check F.I.R., medical report etc. were sent to police station Mainather through constable Abdul Wahab of police station Kotwali and entry in the general diary was made on 10.12.79 at 10.50 hrs. (Ext. Ka-2) by H.C. Visheshwar Dayal Saxena (P.W.3).

The dying declaration (Ect. Ka-23) of injured Km. Krishna was recorded by Executive Magistrate G.D. Rustagi (P.W.10) on 10.12.79 between 12.35 P.M. to 12.50 P.M. Dr. K.K. Nimbooria (P.W.11) posted as Medical officer in the District Hospital, Moradabad gave certification (Exts. Ka-24 & 25) of fitness of patient Km. Krishna to give her statement before the recording and after the recording of dying declaiation. He identified the thumb impression of Km. Krishna (Ext. Ka-26) over the dying declaration.

The crime was investigated by S.I. Tej Pal Singh (P.W.6). He visited the place of offence and prepared the site plan (Ext. Ka.11). He recorded the statement of the injured Krishna (Ext. Ka-10) on 11.12.79 in the District Hospital, Moradabad. He interrogated the first informant and his elder daughter Bhuri. The injured Krishna having died in the hospital on 12.12.79, the crime was altered to Section 304 I.P.C. and an entry was made in the general diary (Ext. Ka-12) on 19.12.79 at 8.05 A.M.

The inquest on the dead body was conducted by S.I. Om Prakash. He prepared the inquest memo (Ext. Ka-6), challan lash (Ext. Ka-7), photo lash (Ext. Ka-8), letter to C.M.O. (Ext. Ka. 9) during the course of inquest and sealed the dead body. The dead body was handed over to constables Dinesh Chandra Sharma (P.W.4) and C.P. Chandra Pal Singh for transportation to mortuary for post-mortem. Dr. M.K. Singhai (P.W 7) conducted the autopsy on the dead body of Km. Krishna and prepaied the post-mortem report (Ext. Ka-19). The death was caused due to shock and septicemia as result of bum injuries. He expressed the possibility of the victim sustaining bums on 8.12.79 at 7. A.M.

Alter completing the investigation the Investigating officer (P.W.6) submitted the charge sheets (Ext. Ka-13, Ext Ka-14 and Ext Ka-18) against the accused appellants and co-accused Ram Charan.

The accused appellants and co-accused Ram Charan were committed to the court of Sessions for standing trial for the offences punishable under Sections 304, 147, 324, 504, 506 I.P.C. by the order dated 2.9.81 of the Chief Judicial Magistrate, Moradabad.

All the accused were charged for the offences punishable under Sections 147, 302/149 I.P.C. The accused appellants having pleaded innocence they were tried for the said charges.

At the trial the prosecution examined eleven witnesses about whom reference has been made as above.

The plea of the accused appellants was of total denial. They attributed their false implication due to enmity. They examined two witnesses namely, Karan Singh (D.W.1) and Jagan Singh (D.W.2) in defence who stated that the victim having throw n leaves on the burning fire the flames of fire inflated and her clothes caught fire.

The trial court found the eye witness account narrated by Smt. Bhuri (P.W.2) trustworthy. The dying declaration (Ext. Ka. 23) recorded by the Magistrate was accepted as true and genuine and the finding of conviction was recorded.

We have heard Sri Raj Kumar Khanna, learned Counsel for the appellants, learned A.G.A. and have thoroughly scrutinized the trial court record.

The learned Counsel for the appellants assailed the finding of conviction on the grounds the dying declaration belies the presence of the witness Smt. Bhuri (P.W.2) at the spot at the time of incident; the appellants having won the case there was no motive to commit the murder of Km. Krishna; the victim sustained bun injuries accidently; the appellants were armed with lathis but no lathi injury was found on the body of deceased; the appellants were charged for the offence u/s 302 I.P.C. with the aid of Section 149 but they have been convicted u/s 302/34 I.P.C. though there was no charge u/s 302/34 I.P.C.; the intention to cause death being absent the case does not go beyond Part-I of Section 304 I.P.C.; the doctor (P.W.11) having not certified the mental condition of Km. Krishna, the presumption of her mental fitness cannot be drawn; the statement of P.W.2 reveals that Km. Krishna remained unconscious throughout upto the tune of her death. The learned Counsel in support of his arguments placed reliance on the decisions in Sher Singh and Another Vs. State of Punjab, Sunder Lal v. State of Rajasthan (2007) 10 SCC 371 , Dhanraj and Others and Smt. Venubai Kelbaji Raut Vs. State of Maharashtra, and Kanchy Komuramma v. State of A.P. 1996 SCC (Cri) 31 . In the case of Sher Singh (supra) the doctor certifying the mental Illness of the deceased was not examined and her mother deposed that she w as not in a fit condition. The Magistrate had not ascertained the mental fitness of the deceased before recording her statement. It was held that the dying declaration was not reliable. In Dhanraj''s case (supra) affirming the law laid down in Koli Chunilal Savji and Another Vs. State of Gujarat, the dying declaration as well as the eye witness account of the incident was found reliable. In the case of Sunder Lal (supra) it was held that the Court has to be on guard that the statement of the deceased was not as a result of tutoring, prompting or a product of imagination. The court must be satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. It was further held that 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. In Sher Singh''s case (supra) it was held that it is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit.

It The prosecution case rested on eye witness account of the incident as narrated by the witness Smt. Bhuri (P.W.2) and dying declaration (Ext. Ka-23) recorded by the Magistrate. The eye witness (P.W.2) categorically stated that on the date of incident at about 7 A.M. she along with her sister Km. Krishna had been going to the fields for grazing their pigs. She was ahead and Km. Krishna was following her. When her sister reached near the gher of Malkhe she heard the outcries ''save save'' and turning her back, she saw the accused Sompal, Kripal, Autari, Sheoraj and Ram Charan burning her sister with sugar-cane leaves. She was burnt in the eastern corner of the gher of Malkhe. Malkhe and Karan Singh reached there and extinguished fire. She went to her house and mutated the incident to her mother. They brought a cot and took Km. Krishna to their house. Krishna had fallen unconscious. She gave out that Krishna had regained consciousness in the hospital and her statement is recorded. She died on the 5th day due to burn injuries. In the cross examination she deposed that when she saw for the first time the accused were witching hold and burning Krishna with sugar-cane leaves. She refuted the suggestion that she was not at her father''s house in the village on the date of the incident. The lengthy and piercing cross-examination of the witness (P.W.2) could yield nothing which may cause expulsion on her testimony She narrated about the incident in plain and truthful manner. There is absolutely no reason to discard her testimony.

The dying declaration (Ext. Ka-23) of mimed Krishna it-corded by Executive Magistrate G.D. Rustagi (P.W.10) on 10.12.79 is reproduced as below:

Km. Krishna, D/o Genda Lal aged 16 uais, r/o Hasha Nagla, P.S. Mainather, district Moradabad states. Last Saturday in the morning at the time of sun rise I was taking my cattle to the jungle for grazing. On the way I met Sheoraj, Kripal, Sompal and Ram Autar sons of Ram Charan residents of my village. All the four of them encircled me in front of the ghee of Malkhe Jatav. I being frightened ran towards the house of Malkhe Jatav where no body lived. Sheoraj and Sompal caught hold of me and Kripal and Autari set fire to my clothes with sugar-cane leaves. Karan Singh Jatav, Malkhe and many other came there on hearing my shriek and all the four of them fled away. Karan Singh, Malkhe and others extinguished fire. I was burnt by them due to litigation of my lather with Ram Charan over the land.

Dr. K.K. Nimbooria (P.W.11) appended the certificate (Ext. Ka-24) before the recording of statement that the patient Km. Krishna is fit to give her statement. After the recording of statement he certified (Ext. Ka. 25) that Km. Krishna remained mentally fit throughout her statement the dying declaration bore the thumb impression (Ext. Ka-26) of Km. Krishna which was certified by the doctor (P.W.11). Before recording of the statement the Magistrate (P.W. 10) had satisfied himself that the victim was in a fit mental condition to give the statement. A11 the outsiders were sent out of the room.

Clause (1) of Section 32 of the Indian Evidence Act makes relevant what is generally described as dying declaration. It essentially means statements made by a person as to the cause of his death of as to the circumstances resulting in his death.

The victim suffered burn injuries on 8.12.79 at 7 A.M. She was admitted in the District Hospital, Moradabad on h 12.79 at 5.22 P.M. by her father. At the time of admission the victim was urn conscious and her general condition was very low. Her dying declaration was recorded on 10.12.79 by the Executive Magistrate C.D. Rustagi (P.W.10) between 12.35 P.M. to 12.50 P.M.. Dr. K.K. Nimbooria (P.W.11) was on emergency duty at the time of recording the dying declaration of Km. Krishna by the Magistrate. According to him he endorsed the certificate (Ext. Ka-24) before the recording of the statement that she was mentally fit to give statement. He remained present throughout the recording of the statement and was constantly observing the patient. After the recording of the statement he appended the certificate (Ext. Ka-25) that the girl remained mentally fit throughout the statement. According to him the family members of the girl were sent out and thereafter the Magistrate had recorded the statement. He went on to state that on the same date at 8.20 A.M. he had sent the memo (Ext. Ka. 27) to the A.D.M. for sending a Magistrate to record the statement of injured. The Executive Magistrate G.D. Rustagi (P.W.10) deposed that on 10.12.79 he was posted as Executive Magistrate in District Moradabad and on that day he had recorded the dying declaration of Km. Krishna, D/o Genda Lal, r/o Hasha Nagla, Police station Mainather. Before recording the statement he had satisfied himself that the victim was in a fit mental condition to give statement. He had obtained the certificate of doctor about her fitness before the recording of her statement. The statement was recorded in question and answer form. He wrote down what was spoken by her. After recording the statement it was read over to her and thereafter her thumb impression was got affixed. The thumb impression was identified by Dr. Nimbooria who was on duty. After the receding of the statement the certificate of doctor was taken that the injured remained mentally fit to give the statement. He further stated that the doctor remained on duty during the recording of the statement. He was not sent out as he was constantly observing the injured that she was in a fit condition.

The testimony of the Magistrate (P.W. 10) and doctor (P.W.11) leveals that at the time of recording of dying declaration no other person was present by the side of victim. If the dying declaration (Ext. Ka-23) was the outcome of tutoring the name of co-accused Ram Charan would not have been left out. The Magistrate and doctor categorically stated that all the outsiders and family members were sent out of the room at the time of recording of the statement. On the face of these acts the dying declaration was voluntarily made and does not suffer from the taint of tutoring.

The question of certification of doctor to the effect that the patient was fit to give her statement and she remained mentally fit throughout her statement. The person recording the dying declaration has to satisfy himself before recording the statement that declarant is in a fit state of mind. Where it is proved by the testimony of Magistrate that the declarantt was fit to make the statement, her statement can be acted upon provided the Court, holds the same to be voluntary and truthful. The doctor (P.W.11) categorically stated that the girl was mentally fit to give statement and he appended the certificate after being satisfied. In the cross-examination no suggestion was given to him that the girl was not mentally fit or conscious to give her statement. The Magistrate (P.W.10) had satisfied himself that the girl was in a fit mental composure to give her statement. There is absolutely no reason to cast any doubt on the testimony of the Magistrate (P.W.10) and doctor (P.W.11). Both of them are Government servants having no affinity with the injured or grudge against the accused appellants to fabricate a document to falsely implicate them in a murder case. The Constitution Bench of the Apex Court in Laxman Vs. State of Maharashtra, has held as under:

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 the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification mat the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration.

In State of Uttar Pradesh Vs. Ram Sagar Yadav and Others, the Apex Court held as under:

It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration See Khushal Rao Vs. The State of Bombay, Harbans Singh v. State of Punjab (1962) Cri.L.J 479 and Gopalsingh v. State of M.P. 1972 SCC 513. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration.

In K. Ramachandra Reddy v. Public Proscutor 1976 SCC (Cri) 473, it was held that a great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It was further held that the court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary, it can bee sufficient to found the conviction even without any further corroboration.

A Judged in the background of the legal principles the doctor examined the patient before the recording of statement and found her in a fit state of mind and thereafter her dying declaration was recorded by the Magistrate. The Magistrate and doctor being disinterested persons their testimony cannot be disbelieved. Their testimony cannot be discredited on the basis of the statement of Smt. Bhuri (P.W.2) that perhaps her sister regained consciousness on 4th day. No suggestion was given to the doctor and Magistrate by the defence that the girl was unconscious at the time of recording her statement. In this way the testimony of Dr. K.K. Nimbooria (P.W.11) and Magistrate G.D. Rustagi (P.W.10) with regard to the mental capacity of the injured Km. Krishna to give statement remained unchallenged. The dying declaration was not the product of tutoring, prompting and imagination. For these reasons we find the dying declaration (Ext. Ka-23) as true, genuine and voluntarily made by the declarant when she was in a fit state of mind and there is no legal impediment to record the conviction on its basis.

Section 464 Cr.P.C. provides what would be the effect of omission to frame or absence of, or error in, charge and reads thus:

(1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, continuation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;

(b) in the case of an error, omission of irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

Interpreting the provisions of Section 464 Cr.P.C. the Apex court in the case of Kammari Brahmaiah and Others Vs. Public Prosecutor, High Court of A.P., held as below:

The aforesaid Section is in mandatory terms and specifically provides what is to be done in cases where a charge is not framed or there is an error, omission or irregularity in framing of the charge. From the unequivocal terms of the section, it can be stated that a finding, sentence or order could be set aside only in those cases where the facts are such that no valid charge could be preferred against the accused in respect of the facts proved. Secondly, if the facts are such that charge could be framed and yet it is not framed but no failure of justice has in fact been occasioned thereby, the finding, sentence or order of the court of competent jurisdiction is not to be set aside on that ground. Thirdly, if there is failure of justice occasioned by not framing of the charge or in case of an error, omission or irregularity in the charge, retrial of the case is to be directed under Sub-section (2).

In Kummari''s case (supra) it has been held that "non-framing of a charge would not vitiate the conviction if no prejudice is caused thereby to the accused. As observed in the aforesaid case, he trial should he fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered. The Criminal Procedure Code is a procedural law and is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities."

In Narinder Singh and Another Vs. State of Punjab, it was held by the Apex Court that ''if the ingredients of the Section are present, conviction in regard thereto can be sustained.''

The dying declaration (Ext. Ka-23) leaves no room of doubt that all the appellants shared common intention to commit the offence and under a pre-arranged plan each of them participated in the commission of offence. In furtherance of common intention each of the appellant played his assigned role by doing separate acts. The roles assigned and proved against the appellants established the element of Section 34 I.P.C. though no charge was framed. The appellants had simultaneous consensus mind in participating in the commission of offence. The appellants Sheoraj and Sompal facilitated the commission of offence by catching hold of victim. The appellants Kripal and Ram Autar set her to fire. All the accused appellants encircled the victim prior to setting fire to her clothes. The conviction and sentence of the appellants u/s 302 I.P.C. with the aid of 34 can be maintained though charge was trained u/s 302 read with Section 149.

In view of the foregoing discussion, the appeal fails and is accordingly dismissed. The impugned judgment and order of conviction and sentence is affirmed.

The Chief Judicial Magistrate, Moradabad shall cause the accused appellants, namely Sheoraj, Kripal, Ram Autar and Sompal arrested and lodged in jail to serve out the sentence awarded by the trial court and affirmed by us.

Certify the judgment to the lower court within a week. The record of the case be transmitted to the court below immediately.