Vidhya Sagar and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Criminal Appeal No. 769 of 2006 has been preferred by appellants Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe and Criminal Appeal No. 502 of 2006 has been preferred by Hari Shankar alias Hariya challenging a common judgment, therefore, the same are being decided with a common judgment.

During pendency of the instant appeal appellant Chotey Lal alias Nanhe, one of the appellant in Criminal Appeal No. 769 of 2006, has moved an application under Section 7A of the Juvenile Justice (Care & Protection of Children) Act, 2000 claiming that he was juvenile on the date of the incident i.e. 30.7.2003, so the matter of determining his age on the date of incident was referred by our order dated 17.3.2015 and concerned Juvenile Justice Board, in compliance of our order, vide its order dated 6.7.2015 has declared appellant Chotey Lal alias Nanhe to be juvenile on the date of incident.

Mr. Ratnesh Trivedi, learned counsel for the appellants and Mr. Sharad Dixit, learned A.G.A. for the State were heard at length.

Under challenge in this appeal is the judgment and order dated 23.2.2006 passed by learned Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Sessions Trial No. 281 of 2004, arising out of Case Crime No. 204 of 2003, Police Station Palia, District Kheri whereby all the three appellants were convicted under Section 302 read with Section 34 I.P.C. and were sentenced with imprisonment for life and also with fine of Rs. 7,000/- with default stipulation of six months additional imprisonment. Appellants Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe were further convicted for the offence under Section 25 of the Arms Act and were sentenced with three years rigorous imprisonment and also with fine of Rs. 1,000/- each with default stipulation of 15 days additional imprisonment. Both the sentences were directed to run concurrently.

In brief the case of the prosecution was that complainant Soni Devi lodged an F.I.R. at police station on 30.7.2003 at 15:05 hours alleging therein that on 30.7.2003 her husband Ram Nageena (deceased) was coming back from Palia Bazar on cycle to his house. When he reached in the north of Village Company Farm in the east of Jhala of Sarvan Singh on Kachcha Road then from the sugarcane field appellant Hari Shankar alias Hariya, Vidhya Sagar alias Loha Singh, Chotey Lal alias Nanhe, all sons of Ram Chhabila, Resident of Jagraur, and Laxman resident of Pattihan came out on the road and fell the cycle of her husband. Loha Singh fired on him with his country-made pistol with an intention to kill her husband, due to which her husband ran from the place of occurrence but because of the injuries, he fell down near the house of Bechal Godiya. In the meantime, hearing the noise of the fire, several persons of the vicinity and son of complainant Pradeep Kumar also reached at the place of occurrence and challenged the appellants then all the four accused persons ran away towards sugarcane field. The incident had taken place at 2:00 p.m. On getting the information of this incident, complainant brought her husband in injured condition to the police station and lodged the F.I.R. After registration of the case, injured Ram Nageena was immediately referred to the hospital. It appears that he was immediately taken to P.H.C. Palia where the doctor has noted on the back of the Chitthi Majrubi that first aid given, the medico-legal examination could not begin because of extensive bleeding. Reference slip given to attendant and thereafter injured Ram Nageena was brought to District Hospital, Lakhimpur Kheri where he was medically examined on 30.7.2003 at 7:45 p.m. and following injuries were noted by the doctor on his body:

(i) Firearm wound of entry 3 c.m. x 2 c.m. On left gastrium on abdomen 5 c.m. below left nipple at 5 O''clock. Surrounded by multiple wounds 15 c.m. x 9 c.m. around wound margins irregular inverted, depth was not proved.

(ii) Firearm wound of entry 5 c.m. x 2.5 c.m. Depth not proved. On back left in lumbar region 2 c.m. Above illiac crest. Wound surrounded by small surrounded abrasion in area of 5 c.m. x 4 c.m. margins irregular and inverted.

Both the injuries were caused by firearm and the duration was fresh.

Initially the case was registered under Section 308 I.P.C. and after the death of Ram Nageena, subsequently it was altered under Section 302 I.P.C. During the course of investigation, the place of occurrence was investigated, site plan was prepared, bloodstained earth and plain earth were taken into custody. On 30.7.2003 at 4:32 p.m., the dying declaration of Ram Nageena was recorded by Mahendra Kumar Srivastava, Naib Tehsildar, at C.H.C. Palia before he left for District Hospital, Kheri, wherefrom he was referred to Medical College, Lucknow, Ram Nageena succumbed to the injuries on 2.8.2003 at 12:40 p.m. and information was sent by Ashok Kumar of Medical College to the local police station on the basis of the same, inquest proceedings were conducted. Postmortem was conducted on the same day at 4:00 p.m. In the postmortem, the duration was less than half day and two firearm wounds of entry were reported by the doctor. The cause of death of deceased was septicemia as a result of ante-mortem injuries. During the course of investigation, on 5.8.2003, the police party, on the information received from a secret informer, had arrested appellants Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe. On their arrest, they made confession of this offence and also offered to get the weapon of offence recovered. Accordingly on their pointing out, weapons of offence were recovered and a separate recovery memo Ex. Ka-15 was prepared and the place wherefrom the recovery was made was also inspected and its site plan was prepared. On the basis of recovery memo separate case under the Arms Act was registered.

After completing the investigation, charge sheet was filed.

The case of the defence was of their false implication because of enmity and that the witnesses are giving false evidence.

In order to prove its case, the prosecution has examined PW-1 complainant Soni Devi. She is not an eyewitness. PW-2 Pradeep Kumar, son of the deceased, claims himself to be an eyewitness. PW-3 Sunita as a witness of recovery of cycle of the deceased from the place of occurrence and this fact has been supported by this witness. PW-4 Munna Babu Niranjan, who has taken up the investigation of this case after the death of Ram Nageena. PW-5 Dr. S.K. Shukla, who has conducted the medical examination of injured Ram Nageena in District Hospital, Kheri. PW-6 Constable Ram Kumar Sharma, who has prepared chik report and G.D. of this case. PW-7 S.I. Lokendra Singh, Investigating Officer of the case under Section 3/25 of the Arms Act. PW-8 S.I. S.P. Singh is a witness of arrest and recovery of appellants Vidhya Sagar and Chotey Lal. PW-9 S.I. B.D. Arun, initial Investigating Officer of this case. PW-10 Mahendra Kumar Singh, Naib Tehsildar, who has recorded dying declaration of Ram Nageena and PW-11 Dr. Ravindra Chopra, who has conducted postmortem on the body of the deceased.

No evidence in defence was adduced on behalf of the appellants.

After appreciated the evidence available on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Submission of learned counsel for the appellants was that the evidence of PW-2 Pradeep Kumar was not the least reliable. There was absolutely no occasion for him to be present on the place of occurrence, which is situated at a very long distance from his own house and his evidence does not inspire confidence. The dying declaration of the deceased has been challenged on the ground that it was not in question answer form and the doctor has nowhere stated that he himself checked blood pressure and other symptoms of the injured to certify that he was in a fit state of mind. It has also been argued that dying declaration of deceased Ram Nageena because of the aforesaid reasons could not have been made the sole basis for the conviction of all the three appellants. On the basis of the same evidence one accused, namely, Laxman has been acquitted by the trial court, therefore, the appellant cannot be convicted on the basis of the same evidence.

First we will take up the ground of acquittal of co-accused Laxman. It is true that co-accused Laxman was named in the F.I.R. and charged sheet was also filed against him but neither his name figured in the dying declaration nor PW-2 Pradeep Kumar, eyewitness has stated before the Court that he was present at the scene of occurrence. So the trial court has rightly acquitted him keeping in view the fact that there was absolutely no evidence against co-accused Laxman. So no benefit of his acquittal can be extended to the present appellants because his case was clearly separable from the present appellants. Principle of falsus in uno falsus in omnibus has no application in India.

Now we come to the evidence of PW-2 Pradeep Kumar, the sole eyewitness of this case. The evidence of PW-2 Pradeep Kumar does not require a very lengthy discussion. According to the case of the prosecution, he was present on the scene of occurrence. He has stated that he had gone to the field of Leela to collect fodder for his cattle. He has also admitted that the place where he was collecting fodder was at a distance of 250-300 meters from the house of Bechan Godiya where the deceased fell. Perusal of the site plan shows that several fields have been shown in the said site plan but field of Leela has not been shown in the site plan nor the place wherefrom PW-2 Pradeep Kumar, has seen the incident, has been shown in the site plan. PW-2 Pradeep Kumar was a witness in the inquest memo. He was supposed to be with his father while his father was fighting for his life. Admittedly by the time, inquest proceedings took place, the F.I.R. came into existence and dying declaration of the deceased has also been recorded. In the inquest report, in the column of opinion of the Panch, it was mentioned that the deceased was coming to his house on 30.7.2003 from Palia. When he reached near Company Farm then some unknown persons fired at him and caused injuries to him. This opinion has been signed by PW-2 Pradeep Kumar. But during cross examination, this witness was not given any opportunity and was not put any question to explain as to why, he has signed such a statement before the Officer, who had conducted the inquest proceedings. Since no opportunity was given to this witness in accordance with the provisions of Indian Evidence Act, therefore, we are not giving any importance to this aspect. But perusal of the evidence of this witness shows that at different places, he has given different statements before the Court. He says that when he reached the place of occurrence his father was lying and his father had told him the name of the accused persons at the place of occurrence but name of Laxman was not told. He had stated that he had seen his father receiving the gunshot injury, at that time, he was pulling the cycle. The fire was shot from a very close range. He had not seen the first fire and only second fire was seen by him but again he says that he had seen both the fires and his both the statements are true. He has stated that he had taken out his father from a pit where he had fallen by holding his hand and pulling him. Thereafter his father pushed him away and starting running but after running for some distance, he again fell down and this witness started running behind the accused persons. This witness has stated that his mother had lodged the F.I.R. as the incident was narrated to her by him and by his father. He has also stated that at that time, when the report was lodged, he was not present there. Perusal of the entire evidence of this witness shows that his evidence is nothing but a bundle of lies. His evidence does not get any support from the medical evidence as no blackening was found. If he was present on the place of occurrence then there was occasion to mention in the F.I.R. that it was a case of single fire. So the evidence of PW-2 Pradeep Kumar was not the least reliable. Even his father in his dying declaration has not stated that his son Pradeep Kumar was present at the place of occurrence.

Now the sole evidence that remains to be considered against the present appellants is the dying declaration of the deceased. Law is settled on the point that if the court finds that the dying declaration of the deceased was wholly reliable then the same can be made basis of conviction. The argument to discard this dying declaration of the deceased was that it was not in question answer form and the doctor has not recorded the finding on the basis of which, he was of the view that the deceased was not in a fit mental state to give statement. We will discuss the law on this point to conclude whether the grounds of challenge of this dying declaration have any substance. But before proceeding further in the matter, we would like to reproduce the dying declaration of the deceased, which reads as under:-

In this dying declaration, the deceased has made specific role of firing on him to both the appellants, namely, Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe and only role of exhortation has been assigned to the third appellant i.e. Hari Shankar alias Hariya.

Now we would consider the legal aspects of the argument raised on behalf of the appellants.

Hon''ble the Apex Court in the case of Laxman v. State of Maharashtra reported in [, 2003 (1) JIC 30 (SC)], has observed in paragraph 3 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. Whether 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."

(Underlined by us)

In the case of Babu Lal and others v. State of M.P. reported in , (2003) 12 SCC 490, Hon''ble the Apex Court has again considered the law regarding dying declaration and has observed in paragraph 7 as under:-

"7....A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person 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. The maxim is "a man will not meet his maker with a lie in his mouth" (Nemo moriturus praesumitur mentire). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice....."

Hon''ble the Apex Court in the case of S.P. Devaraju Vs. State of Karnataka reported in , (2009) 12 Supreme Court Cases 676 wherein Hon''ble Apex Court has followed its earlier judgment in the case of Ramawati Devi Vs. State of Bihar reported in , (1983) 1 SCC 211 and has held in paragraph No. 17 as under:-

"17. 11. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.

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 on the same 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 , (1992) 2 SCC 474 (SCC pp. 480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja v. State of M.P. , (1976) 3 SCC 104]

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See: State of U.P. v. Ram Sagar Yadav , (1985) 1 SCC 552 and Ramawati Devi. v. State of Bihar , (1983) 1 SCC 211)

(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. [See: K. Ramachandra Reddy v. Public Prosecutor , (1976) 3 SCC 618]

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v. State of M.P. , (1974) 4 SCC 264]

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P. , 1981 Supp SCC 25]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State of U.P. , (1981) 2 SCC 654]

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu , (1980) Supp SCC 455)

(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. [See: Surajdeo Ojha v. State of Bihar , (1980) Supp SCC 769]

(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks 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. [See: Nanhau Ram v. State of M.P. , 1988 Supp SCC 152]

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan , (1989) 3 SCC 390]

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra , (1982) 1 SCC 700]

In the light of the above principle, the acceptability of the dying declaration of deceased Ram Nageena in the instant case has to be considered. The dying declaration is a piece of untested evidence and it must satisfy the Court that what is stated therein is the unalloyed and absolutely safe to act upon. We have very carefully gone through the dying declaration of the deceased. He has specifically assigned the role of firing to appellants Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe. Thus statement of the deceased shows that the initial version with which the prosecution had come-forward was not the correct version because in the initial version only one fire was alleged by appellant Chotey Lal. As we have stated that neither Soni Devi nor Pradeep Kumar were present on the spot and deceased Ram Nageena has stated that he regained senses in Hospital so the F.I.R. was virtually lodged on the basis of information given to the complainant through other persons, whose identity has not been disclosed.

Submission of learned counsel for the appellants was that it was not in question answer form has absolutely no substance. What is required under law to test the dying declaration is whether it was voluntary statement made by the injured under imminent fear of death and the deceased was in a fit state of mind to give his statement. Regarding the mental status of the deceased, the doctor has given medical certificate before recording the statement and also after completion of the said dying declaration. Submission of the learned counsel for the appellants was that the doctor has not noted the clinical findings such as pulse rate and BP etc. on the basis of which, he has certified that the deceased was not in a fit state of mind, has no legs to stand. The certificate of fit mental status of the deceased is only a rule of caution and not a mandatory requirement/condition precedent to act upon a dying declaration. It is the satisfaction of the officer recording the dying declaration, which is of the highest importance.

Perusal of the evidence of PW-10 Mahendra Kumar Srivastava clearly shows that he was absolutely satisfied about the physical and mental condition of the deceased. He has given very specific answers to the questions put to him in his cross-examination. The argument of learned counsel for the appellants was that it was not in the question answer form also is not necessary requirement because in the facts of the instant case, PW-10 Mahendra Kumar Srivastava has stated that he had asked the deceased as to what happened with him and in reply to this question whatever was said by injured Ram Nageena was noted down by him in the words of the injured Ram Nageena. So virtually the entire dying declaration was noted by Mahendra Kumar Srivastava in the words of the deceased wherein specific role of firing was assigned to appellants Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe. So the trial court has rightly observed that the dying declaration recorded by PW-10 Mahendra Kumar Srivastava, Naib Tehsildar was wholly reliable. Though the trial court has also placed reliance on the evidence of PW-2 Pradeep Kumar but we do not agree with the finding of the trial court to that extent. But we agree with the view of trial court that the dying declaration of the deceased was wholly reliable. Regarding appellant Hari Shankar alias Hariya it has been submitted that keeping in view the fact that an effort was made by the complainant side to create a prosecution story and this fact stands substantiated by the prosecution evidence that name of Laxman was disowned by the prosecution witnesses themselves. The case of the appellant Hari Shankar alias Hariya becomes distinguishable as he was not assigned any role of firing on the deceased. So submission of learned counsel for the appellants has substance that keeping in view the role assigned to appellant Hari Shankar alias Hariya, benefit of doubt may be extended to him. His enmity with the deceased is admitted and he was real brother of the other two appellants.

Taking an overall aspects of the matter, holding the dying declaration to be wholly reliable so far as it relates to causing firearm injuries to the deceased by the two appellants i.e. Vidhya Sagar alias Loha Singh and Chotey Lal alias Nanhe is concerned, we find absolutely no illegality or irregularity or factual infirmity in the finding of the trial court, so we also hold that Criminal Appeal No. 769 of 2006 deserves to be dismissed. However, Criminal Appeal No. 502 of 2006 deserves to be allowed. Appellant Hari Shankar alias Hariya deserves to be granted benefit of doubt.

In view of the discussion made above, Criminal Appeal No. 502 of 2006 is hereby allowed. Appellant Hari Shankar alias Hariya is acquitted of the charge levelled against him. He is on bail. His bail is cancelled and sureties discharge. He need not surrender.

Criminal Appeal No. 769 of 2006 is hereby dismissed so far as it relates to appellant Vidhya Sagar alias Loha Singh. The conviction and sentence of appellant Vidhya Sagar alias Loha Singh as awarded by the trial court is hereby confirmed. He is in jail. He shall serve out the sentence as awarded by the trial court. Criminal Appeal No. 769 of 2006, so far as it relates to appellant Chotey Lal alias Nanhe is partly allowed on the point of sentence. Appellant Chotey Lal alias Nanhe in Criminal Appeal No. 769 of 2006 has been declared juvenile by the Juvenile Justice Board. He is in jail for the last more than six years. Under the provisions of Juvenile Justice (Care & Protection of Children) Act, 2000, a juvenile cannot be kept under detention in reform house for a period of more than three years. So in this background, it would be a futile exercise to refer the matter of appellant Chotey Lal alias Nanhe for inflicting the sentence to the concerned Juvenile Justice Board in pursuance of the provisions of Section 20 of the Juvenile Justice (Care & Protection of Children) Act, 2000. So we hereby direct that he shall be released from jail forthwith, if not wanted in any other case. To this extent, his appeal stands partly allowed.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.