Sudama and anr. vs State of Haryana

Harbans Singh Rai, J.

The appellants were convicted by the Additional Sessions Judge (II), Sonepat, vide his order dated 29th May, 1985, under Sections 326/34, and 323/34, Indian Penal Code, and were sentenced to undergo rigorous imprisonment for five years and six months, each respectively. Feeling aggrieved, they have filed this appeal.

Kanta Parshad was a resident of Sekunderpur in UP and for the last four years, prior to the incident, he was employed in the Atlas Cycle Factory, Sonepat. He used to live in Bawa Colony. On 28th June, 1983, at about 8.30 p.m., he had gone to the house of Shiv Sagar in Roop Nagar and after meeting him, he was going to his house when in the way he was confronted by the appellant, and Sudama, appellant, was armed with a knife while Moti, appellant, and Rajinder Singh accused were having Dandas. They challenged him that he will be dealt with for the leadership. Sudama gave a knife blow in the left hand side ribes while Moti gave a Lathi blow at his neck and Rajinder accused had give a Lathi blow at his forehead. Sudama further gave a tooth bite at Kanta Parshad''s right hand fingers Kanta Parshad raised a cry which attracted Shiv Sagar, Ram Avtar Nanda, PWs to the spot who rescued him. Kanta Parshad was taken to the hospital where ultimately, he died on 4th July, 1983. The appellants were tried and the trial Court convicted them under Sections 326/34 and 323/34, Indian Penal Code.

The prosecution has produced Shiv Sagar PW 8, and Ram Avtar PW 13, as eyewitnesses, and Gajraj PW 7 as the witness reaching immediately after the occurrence.

Dr. Deepak Parkash, PW 9, had examined Kanta Parshad at 10.30 p.m. on 28th June, 1983, and had found the following injuries :

(i) Punctured wound vertical in direction on the left side of chest measuring 2 cm. x .5 cm. x ?. This was present on the anterior maxillary line, fresh bleeding was present. Xray was advised for ribs.

(ii) A lacerated wound transverse in direction on the occipital region of scalp measuring 4 cm. x 0.5 cm. x bone deep. Xray of skull was advised.

(iii) Lacerated wound on the left side of back of the chest measuring 3 cm. X 1 cm. skin deep, fresh bleeding was present.

(iv) Two lacerated wounds of the size of 2 cm. x 1 cm. skin deep and 1.5 cm. x .5 cm. x skin deep on the palmer surface of right ring and little finger, or right hand respectively. Fresh bleeding was present. There was no tenderness or swelling.

PW 6 Dr. Sharma had conducted the postmortem examination on the dead body of Kanta Parshad on 5th July, 1983 and found the following injuries :

(i) There was a wound of 2 x 1 cm. x 5 cm. deep, 3 cm. above the public symphaysis after opening the bandage of the abdomen.

(ii) There was a gapped infection wound 22 x 3 cms. on the left paramedical side of the abdomen upto the rectum sheath.

(iii) Oblique incised wound 3 cm. x 2 cms. on the left side of the chest 6 cms. deep after probing. Blood was present in the surrounding subcutaneous tissues.

(iv) Oblique incised wound 3 cms. x 1 cm 4 cm. deep, 2 cm. above the wound. Blood in the surrounding the subcutaneous tissues.

(v) Stitched wound 6 cms. oblique on the anteriormedial side of right thigh upper 1/3rd region.

(vi) Stitched wound of 4 cms. on the right upper limb on the anterolateral aspect.

(vii) 3 cms. stitched wound lower 1/3rd region both the lower limbs.

After opening the abdomen and thorax :

(i) Thoracic cavity was full of blood. Lateral surface of the left lung was ruptured of the size of 1.5 x 0.5 cm. in the side.

(ii) There was irregular rupture of the spleen on the lateral side.

(iii) Abdominal cavity was full of blood, serozengineous foul smelling infected fluid was present.

(iv) Small intestine and mesentry was stitched.

The prosecution had also produced Randhir Singh, Head Constable, PW 19, to prove the statement of the deceased which was recorded by him on 29.6.1983 in Civil Hospital, Sonepat. That state is Exhibit P.K.

The appellants when examined under Section 313, Criminal Procedure Code, had denied the prosecution case.

I have heard the learned Counsel for the parties.

The prosecution in this case depended on (i) motive, (ii) the eyewitness account consisting of Shiv Sagar, PW 8 and Ram Avtar Nanda, PW 13 (iii) recovery of knife, Exhibit P1 and (iv) the dying declaration in the form of statement, Exhibit P.K.

The trial Court while dealing with the motive came to the conclusion that motive is not established as the trial Court found that no investigation has been made on the point of motive. The trial Court came to the conclusion that in the present case, on the point of motive, neither the prosecution wins nor the accused loses, and the matter is to be decided on other evidence.

The trial Court also did not believe PW 8 Shiv Sagar and Ram Avtar Nanda, PW 3. As regards Ram Avtar Nanda, the finding of the trial Court is that he has been falsely introduced into the case and as such his statement is excused and cannot be taken into consideration. Repeated finding has been given qua this witness that he has been introduced falsely.

The trial Court while discussing the conduct of Ram Avtar Nanda and Shiv Sagar, PWs has further come to the conclusion that the presence of both the witnesses at the time of the occurrence appears to be doubtful. It is found that their version is not in conformity with the version given in the statement of the deceased Exhibit P.K.

The trial Court has also not accepted the recovery of knife Exhibit P1 and has acquitted Sudama appellant under the Arms Act.

The trial Court after discarding the eyewitnesses account, the recovery of the knife and motive, has accepted the statement of the deceased Exhibit P.K., recorded by Randhir Singh, Head Constable on 29th June, 1983, as dying declaration, and taking it as sufficient to base the conviction, has convicted the appellants.

The learned counsel for the appellants has challenged the finding of the trial Court and has argued that Exhibit P.K. cannot be used as dying declaration and even if it used, it stands contradicted and is not at all sufficient to maintain the conviction.

The deceased was removed to Civil Hospital immediately after the occurrence and he was medically examined by Dr. Deepak Parkash at 10.30 p.m. on 28th June, 1983. Dr. Deepak Parkash sent a ruqa to the Police Station and on receipt of the ruqa Head Constable Randhir Singh got a report from the doctor in the morning of 29th June, 1983 that the deceased was in a fit condition to make a statement and record the statement, Exhibit P.K. The learned counsel for the appellants has argued that his statement cannot be relied upon as it suffers from a number of legal infirmities. He has brought to my notice that there is a delay in recording the statement and it is not attested by the doctor attending on the deceased. It is further pointed out that the trial Court has not accepted the presence of Shiv Sagar and Ram Avtar Nanda, PWs at the place of the occurrence and the statement of the deceased clearly states that these two witnesses were present at the spot and they rescued him. In the light of this, it is argued that this statement is not legally sufficient to convict the appellants.

I have considered the arguments and find weight at them. Statement Exhibit P.K. which is now being sought to be used as dying declaration, is recorded by Head Constable Randhir Singh, who was the Investigating Officer at that time and is not attested by anybody else. There is no explanation by the doctors attending the deceased as to why they did not attest the statement, nor is it in the prosecution evidence that the statement was recorded in the presence of the doctors. In fact, the prosecution is silent as to who were present at the time of recording the statement, Exhibit P.K. and how it was recorded. The prosecution has not led any evidence to explain the delay in recording the statement. The fact that the version of the deceased qua the presence of the eyewitnesses is not accepted by the trial Court weakness it further. When seen in the light of the fact that the trial Court has not accepted the motive, the recovery of the knife, the eyewitness account and has found that the version given by the eyewitness is also at variance with the version given in the statement, Exhibit P.K. by the deceased, it is very difficult to hold that the statement, Exhibit P.K. given by the deceased, is unimpeachable. In view of the circumstances, I am of the view that the statement of the deceased, recorded by Head Constable Randhir Singh, Exhibit P.K. alone is not sufficient to hold the appellants guilty of the charge. In the light of this, they are given the benefit of doubt and acquitted of the charges.

In the result, the appeal is allowed and the appellants are acquitted of the charges.